11 So. 803
97 Ala. 126 - 1892

Alabama Great Southern Rail Road Co.
v.
Carroll.

[126] Action by Employe for Injuries Sustained in Another State.

1. Negligence of fellow-Servant not cause of action against master at common-law.–Underthe common-law, both in Alabama and Mississippi, the master is not liable for an injury inflicted through the negligence of a fellow-servant.

2. Section 2590 of the Code has no extra territorial operation.—There can be no recovery in Alabama for injuries to the person sustained in another State, unless actionable by the law of the State where received, and this rule is not varied because the negligence which produced the casualty transpired in Alabama, where the common-law liability of the master is modified, nor by the facts that both master and employee reside in this State and services were required of the employee in both States.

3. Section 2590 imposes no contractual obligations.– The liability of the employer under Section 2590 of the Code, does not spring from the contract of employment, the only office of which is to establish the relation of master and servant, and it is alone upon the incidents of that relation that the statute operates. Hence, a servant injured in another State by the negligence of a fellow-servant, under such circumstances as would create no right of action against the master in that State, cannot recover against the latter in Alabama, although the contract was entered into and the services partly performed here

Appeal from City Court of Birmingham. Tried before Hon. H. A. SHARPE.

J. W. FEWELL, and A. G. SMITH, for appellant.

That the action is not for breach of contract, nor for breach of duty growing out of contract.-R. R. Go. v. Doyle, 60 Miss. 977; A .T. & R. R. v. :Moore, 11 Am. & Eng. R. R. cases 243; LeForest v. Tolman, 19 Am. Rep. 400; McMaster v. R. R. Co., 65 Miss. 264; Davis v. N. Y. R. R. 143 Mass. 301; 33 Kan. 83; 98 N. Y. 377; 61 Iowa 441; 61 Tex. 432; 72 Ind. 220; 10 Ohio St. 121; E. T. V. & G. Rwy. v. Lewis, 14 S. W. Rep. 603; 23 N. Y. 465; 5 Am. & Eng. Encyc. 127; 3 lb. 522; 10 S. Rep. 661; 2 Thomp. on Neg. p. 1282.

BROOKS & BROOKS, for appellee, as to jurisdiction, cited Denw1ck v. R. R. Go. 103 U. S. 18; Knight v. R. R. Co. 108 Pa. St. 38; Am. Rep. 492; A. G. S. v. Thomas, 89 Ala. 293.

That the law is part of the contract, Hanrick v. Andrews, 9 Port. 9; McDougald v. Rutherford, 30 Ala. 253; Walker v Forbes, 31 Ala. 9; Brouqhton v. Bradley, 36 Ala. 689; Cubbedge v. Napier, 62 Ala. 518; 100 U . S . 213; 116 lb. 647; 3 Am. & Eng. Encyc. 545.

McCLELLAN, J.

The plaintiff W. D. Carroll is, and was [127] at the time of being injured in that service, a citizen of Alabama. The defendant is an Alabama corporation operating a railroad extending from Chattanooga in the State of Tennessee through Alabama to Meridian in the State Mississippi. At the time of the casualty complained of, plaintiff was in the service of the defendant in the capacity of brakeman on freight trains running from Birmingham, Alabama, to Meridian, Mississippi, under a contract which was made in the state of Alabama. The injury was caused by the breaking of a link between two cars in a freight train which was proceeding from Birmingham to Meridian. The point at which the link broke and the injury was suffered was in the State of Mississippi. The evidence tended to show that the link which broke was a defective link and that it was in a defective condition when the train left Birmingham. It was shown that this link, had come to the defendant's road at Chattanooga, Tennessee, with a car which belonged to and came to that point over a road which was foreign to the A.G.S. road. That at Chattanooga, this foreign car was coupled into a train of the defendant by means of this link, the destination of the car next in rear of it being Birmingham, and the destination of the second car in the rear of it, which belonged to defendant, being Meridian, to which point the foreign car was also bound. At Birmingham the car between this foreign car and the A.G.S. car which were billed to Meridian was cut out, and these two were coupled together by means of the link which had come to the defendant with the foreign car. The evidence went also to show that the defect in this link consisted in or resulted from its having been bent while cold, that this tended to weaken the iron and in this instance had cracked the link somewhat on the outer curve of the bend, and that the link broke at the point of this crack. It was shown to be the duty of certain employees of defendant stationed along its line to inspect the links attached to cars to be put in trains or forming the couplings between cars in trains at Chattanooga, Birmingham, and some points between Birmingham and the place where this link broke, and [128] also that it was the duty of the conductor of freight trains and the other train-men to maintain such inspection as occasion afforded throughout the runs or trips of such trains; and the evidence affords ground for inference that there was a negligent omission on the part of such employees to perform this duty, or if performed, the failure to discover the defect in and to remove this link was the result of negligence..

The foregoing statement of facts, either proved or finding lodgment in the tendencies of the evidence, together with. the evidence of the law of Mississippi, as to the master's liability for injuries sustained by an employee in his service, will suffice for the consideration and determination of the question which is of chief importance in this case, namely, whether the defendant is liable at all on the facts presented by this record for an injury sustained by the defendant in the State of Mississippi. The affirmative of this inquiry is sought to be rested and maintained upon two distinct propositions. In the first place, it is insisted that the. negligence which one aspect of the evidence tends to establish Is that of the defendant m respect of a duty which the law imposes upon the master and which whether performed or undertaken to be performed in the particular instance by the hand of the master or by the hand of one to whom he had delegated its performance is yet to be taken as being performed or attempted to be performed by the master himself, in such sort that the employer is responsible for its misperformance or non-performance whereby injury results to one of his employees under the doctrine of the common-law and wholly irrespective of statutory provisions. These doctrines are presumed, and also shown by the evidence in this case, to obtain in the State of Mississippi; and the defendant being an Alabama corporation it can­ not be questioned that an action may be maintained in this State to recover damages for an injury sustained in Mississippi, by one of its servants, if the facts present a good cause of action under the law of that State. It is manifest beyond adverse inference on the evidence, conceding the link, the breaking of which caused the accident, to have been in a defective condition when it came to defendant's road at Chattanooga attached to, and intended to be used in the further transportation, of the foreign car, that it was so used from that point to the place of the accident, that this defective condition of the link was patent to such observation as should have been bestowed upon it and that the defect in it was the proximate cause of the injury to the plaintiff, it [129] is, we say clear upon every aspect of the testimony, conceding all this to be true, that the use of that link in coupling the foreign car to the defendant's train and also in its use throughout the voyage from Chattanooga into Mississippi was due to the negligence of employees of the defendant who were charged by it with the duty of inspecting the link before and at the time of incorporating the foreign car into this train and at the several points in Alabama where inspectors were stationed as shown by the evidence, and also of the train-men charged with the duty of inspection as the train was en route. There is no pretense that the defendant had not been sufficiently careful in the selection of these inspectors or that they were incompetent. It is not pretended that they were insufficient in number or stationed at points too widely separated along the line. There is no such idea advanced as that the defendant was negligent in the purchasing of links of adequate strength, and supplying them to these inspectors and to trains gene­ rally; or that there was any necessity for the continued use of this link upon a discovery of its defective condition; but on the contrary it is affirmatively shown that the defend­ ant purchased and supplied its trains and employees with all necessary links of good quality and perfect condition to be used in its trains, to supply the places of links which be­ came defective from use, and to substitute for defective links coming to this road with foreign cars. The only negligence, in other words and in short, which finds support by direction or inference in any tendency of the evidence, is that of per­ sons whose duty it was to inspect the links of the train, and remove such as were defective and replace them with others which were not defective. This was the negligence not of the master, the defendant, but of fellow-servants of the plaintiff, for which at common-law the defendant is not liable. Thus it is said in McKinney on Fellow-Servants, § 127 : "It is a very common thing for train hands to receive injury through the negligence of persons employed by the company to inspect their cars to discover defects and repair them. The weight of authority, perhaps, is to the effect that the negligence of such employees in the performance of such duties cannot be attributed to the company, and it is consequently not liable for it." Citing among other cases Smith v. Potter, 46 Mich. 258; s. c. 2 Am. & Eng. R. R. Cas. 140; Mackin v. Railroad Co., 135 Mass. 201; s. c.

15 Am. & Eng. R. R. Cas. 196; Railroad Co. v. Webb, 12 Ohio St. 475; Railroad Co. v. Rice, 11 So. West Rep. (Ark.) 699; Kidwell v. Railroad Co. 3 Wood (U. S.) 313; and our own case

[130] of Smoot v. Mobile & Montgomery R. R. Co. 67 Ala. 13; and these and other cases are cited to the same proposition in 7 Am. & En. Encyc. of Law p. 864, note.

There are cases which hold to the contrary, but the law is and has long been settled in this State as we have stated it, the case of Smoot v. Mobile (t Montgomery R. R. Co. supra, being directly in point.—Mobile & Ohio R. R. Co. v. Thomas, 42 Ala. 672, 720 et seq; Mobile & Montgomery Ry. Co. v. Smith, 59 Ala. 245; Louisville & Nashville R. R. Co. v. A.llen, 78 Ala. 494.

This being the common-law applicable to the premises as understood and declared in Alabama, it will be presumed in our courts as thus declared to be the common-law of Mississippi, unless the evidence shows a different rule to have been announced by the Supreme Court of the State as being the common-law thereof. The evidence adduced here fails to show any such thing; but to the contrary it is made to appear from the testimony of Judge Arnold and by the decisions of the Supreme Court of Mississippi which were introduced on the trial below that that court is in full accord with this one in this respect. Indeed, if any thing, those decisions go further than this court has ever gone in applying the doctrine of fellow-servants to the exemption of railway companies from liability to one servant for injuries resulting from the negligence of another, holding in one case that a hostler whose only duty it was to supply an engine with sufficient sand before turning it over to the engineer to go on the road is a fellow-servant of the engineer for whose negligent failure to supply the same the company would not be liable.–L. & N. R. R. Co. v. Petty, 67 Miss. 255; in another, that a section foreman and a laborer working under him were fellow-servants in such sort that their common master would not be liable for the negligence of the former in attempting to repair a fishbar which he ought to have discarded and applied for a new one.—Lagrave v. Mobile & Ohio R. R. Co. 67 Miss. 532; and in yet another case, that a section foreman and train-man are fellow-servants in respect of the Ifegligence of the former unknown to the company in failing to keep the track in repair, and that an engineer on a passing train who was injured in consequence could not recover against common employer.–N. 0. J. & G. N. R. R. Co. v. Hughes, 49 Miss. 258; and the doctrine of this case is said by Mr. McKinney to be "substantially the rule recognized by the English common-law decisions." McKinney on Fellow-servants, p. 82 § 29. See also McMaster v. Illinois Central R. R. Co. 65 Miss. 264.

[131] Proceeding therefore on the presumptions we are authorized to indulge and also on the evidence adduced in this case as to the law of Mississippi in this connection, and upon the testimony most favorable to the plaintiff as to the cause of his injuries, we feel entirely safe in declaring that plaintiff has shown no cause of action under the common-law as it is understood and applied both here and in Mississippi.

It is, however, further contended that the plaintiff, if his evidence be believed, has made out a case for the recovery sought under the Employer's Liability Act of Alabama, it being clearly shown that there is no such, or similar law of force in the State of Mississippi. Considering this position in the abstract, that is dissociated from the facts of this particular case which are supposed to exert an important influence upon it, there can not be two opinions as to its being unsound and untenable. So looked at, we do not understand appellee's counsel even to deny either the proposition or its application to this case, that there can be no recovery in one State for injuries to the person sustained in another unless the infliction of the injuries is actionable under the law of the State in which they were received. Certainly this is the well established rule of law subject in some jurisdictions to the qualification that the infliction of the injuries would also support an action in the State where the suit is brought, had they been received within that State. 3 Am. & Eng. Encyc. of Law, p. 508-9; Hyde’s Admr. v. Wabash, St. Louis & Pacfic Ry. Co. 61 Iowa, 441; East Tenn. Va. & Gu. R. R. Co. v. Lewis., 14 S. W. Rep. 603; Buckles v. Ellers, 72 Incl. 220; Willis v. Mo. Pac. Ry. Co. 61 Texas, 432; Woodward v. M.S. & N. I R. R. Co. 10 Ohio St. 121; Whitford v. Panama Railroad Co. 23 N. Y. 465; Debovois v. .N. Y. L. E. & W. R. R. Co. 98 N. Y. 377; N C. & St. L. Ry. Co..v. Foster, 11 Amer. & Eng. R. R. Cas. 180; 2 Rover on Railroads, p. 1149 ; Kahl v. M & C. R. R. Co. 95 Ala. 337; C. St. L. & JJio. R. R. Co. v. Doyle, 60 Miss. 977; Davis 1'. N. Y. & N E. R. R. Co. 143 Mass. 301; LeForest v. Tolman, 117 Mass. 109; s. c. 19 Amer. Rep. 400; Lime­ killer v. H. & St. J. R. R. Co. 33 Kan. 83; The Scotland, 105 U. S. 24; The Santa Cruz, 1 C. Rob. 50; A. '1'. & S. F. R. R. Co. v. Moore, 11 Am. & Eng. R. R. Cas. 243.

But it is claimed that the facts of this ease take it out of the general rule which the authorities cited above abundantly support, and authorize the courts of Alabama to subject the defendant to the payment of damages under section 2590 of the Code, although the injuries counted on were sustained in Mississippi under circumstances which involved no liability on the defendant by the laws of that State.

[132] This insistence is in the first instance based on that aspect of the evidence which goes to show that the negligence which produced the casualty transpired in Alabama, and the theory that wherever the consequence of that negligence manifested itself, a recovery can be had in Alabama. We are referred to no authority in support of this proposition, and exhaustive investigation on our part has failed to disclose close any. There are at least two well considered cases against it, one of which involved an effort to recover for personal injuries sustained in Alabama under circumstances which afforded no cause of action in Alabama in the courts of Tennessee where the causal negligence occurred and where also had the negligence manifested itself in the results complained of there, the plaintiff would have been entitled to recover. The accident happened on a train going from Nashville to Chattanooga, in Tennessee, on a railway which runs for a comparatively short distance through Alabama. The negligence relied on consisted in the failure of employees of the defendant charged in that behalf to discover and remedy a defective brake before the train left Nashville as well as during its passage through Tennessee. While the train was running through Alabama, a brakeman was killed in consequence of the defect in this brake. All this is precisely on all fours with our case in those of its aspects most favorable to the plaintiff. That plaintiff, the court conceded, would have had a good cause o · action under the law of Tennessee, the place of the negligence, if his intestate had been injured within its limits. So here, the plaintiff on one aspect of the evidence would have had a good cause for ac ion in Alabama, the place of the negligence, had he been injured in Alabama. But it was found in that case that the law of Alabama gave no cause of action for the negligent failure to inspect the appliances used in operating a train, but held the brakeman and the inspectors to be fellow-servants in respect thereto, just as here the laws of Mississippi afforded no redress for the consequence of such negligence, though our statutes have since the Tennessee decision provided therefor; and it was held on the authority of Mobile & Ohio R. R. Co. v. Thomas, 42 Ala. 672, that there could have been no recovery in Alabama and that of consequence no cause of action existed in Tennessee, the court saying: '·There is no question but the laws of Alabama· · · controlled the rights of the parties in this case, and whether there was error in this part of the charge (referring to an instruction as to defendant's liability on the negligence shown) as given, or the refusal of the specific instructions asked for (substantial-[133]-ly that the negligence of a car inspector from which a brakeman suffers injury is no ground for action against their common employer,) depends wholly upon the laws of that State. Nashville, Chattanooga & St. Louis By. Co. v. Foster, 10 Lea, 352 ; s. o. 11 Amer. & Eng. E. E. Ca's. 180. In the other case the precise point here under consideration was brought before the Supreme Court of Mississippi, in an action instituted in that State sounding in damages for fatal injuries inflicted upon plaintiff's intestate in the State of Tennessee. It was insisted that inasmuch as the death of the deceased resulted from the negligent failure of a train dispatcher in Mississippi to give requisite orders to the trainmen at a certain point in Tennessee, the rights of the parties were de­ terminable by the laws of Mississippi the place of the disastrous negligent omission. But the court held to the contrary, saying: "The right of the appellee is determinable by the laws of Tennessee, in which State the killing of her husband occurred. The view that no recovery could be had here, except for a result traceable to an omission of duty in Mississippi is unfounded. Physical force proceeding from this State and inflicting injury in another State might give rise to an action in either State, and vice versa but the omission of duty in Mississippi cannot transfer a consequence of it manifested physically in another State to Mississippi. The cases of injuries commenced in one jurisdiction and completed in another illustrate our views on this subject. The true view is that the legal entity called the corporation is omni-present on its railroad, and the presence or absence of negligence with respect to an occurrence at any point of the line is not to be resolved by the place at which an officer or employe was stationed for duty. The question is as to duty operating effectually at the place where its alleged failure caused harm to result. The locality of the collision was in Tennessee. It was there, if any where, that the company was remiss in duty, for there is where its proper caution should have been used."–Chicago, St. Louis & New Orleans R. R. Co. v. Doyle, 60 Miss. 977, 984. If this doctrine was properly applied to the facts of that case where the act to be performed, the failure to perform which caused the in­ jury, could only be performed at a point in Mississippi and by an employe who was stationed and remained at that place, it would seem to address itself with more force to the case at bar where it appears the corporation was in fact present with the train and with the defective link every inch of the journey from Birmingham to the point of the accident in the person of the conductor and other trainmen who were charg-[134]-ed with the duty all along the line of discovering and removing the unsafe appliances.

The position of the Mississippi court appears to us to be eminently sound in principle and upon logic. It is admitted, or at least cannot be denied, that negligence of duty unproductive of damnifying results will not authorize or support a recovery. Up to the time train passed out of Alabama no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever arose. The face which created the right to sue, the injury without which confessedly no action would lie anywhere, transpired in the State of Mississippi. It was in that State, therefore, necessarily that the cause of action, if any, arose; and whether a cause of action arose and existed at all or not must in all reason be determined by the law which obtained at the time and place when and where the fact which is relied on to justify a recovery transpired. Section 2590 of the Code of Alabama had no efficiency beyond the lines of Alabama. It cannot be allowed to operate upon facts occurring in another State so as to evolve out of them rights and liabilities which do not exist under the law of that State which is of course paramount in the premises. ·where the facts occur in Alabama and a liability becomes fixed in Alabama, it may be enforced in another State having like enactments, or whose policy is not opposed to the spirit of such enactments, but this is quite a different matter. This is hut enforcing the statute upon facts to which it is applicable all of which occur within the territory for the government of which it was enacted. Section 2590 of the Code, in other words is to be interpreted in the light of universally recognized principles of private international or interstate law, as if its operation had been expressly limited to this State and as if its first line read as follows: ''When a personal injury is received in Alabama by a servant or employee," &c., &c. The negligent infliction of an injury here under statutory circumstances creates a right of action here, which, being transitory, may be enforced in any other State or country the comity of which admits of it; but for an injury inflicted elsewhere than in Alabama our statute gives no right of recovery, and the aggrieved party must look to the local law to ascertain what his rights are. Under that law this plaintiff had no cause of action, as we have seen, and hence he has no rights which our courts can enforce, unless it be upon a consideration to be presently adverted to. We have not been inattentive to the suggestions of counsel in this connection, which are based upon that rule of the statutory and common crim-[135]-inal law under which a murderer is punishable where the fatal blow is delivered, regardless of the place where death ensues.—Green v. State, 66 Ala. 40. This principle is patently without application here. There would be some analogy if the plaintiff had been stricken in Alabama and suffered in Mississippi, which is not the fact. I here is, however, an analogy which is afforded by the criminal law, but which points away from the conclusion appellee's counsel desire us to reach. This is found in that well established doctrine of criminal law, that where the unlawful act is committed in one jurisdiction or State and takes effect-produces the result which it is the purpose of the law to prevent, or, it having ensued, punish for-in another jurisdiction or State, the crime is deemed to have been committed and is punished in that jurisdiction or State in which the result is manifested, and not where the act was committed. 1 Bish. Cr. Law, § 110 et seq.; 1 Bish. Cr. Pro. §53 et seq.

Another consideration-that referred to above-it is insisted, entitles this plaintiff to recover here under the Employer's Liability Act for an injury inflicted beyond the territorial operation of that act. This is claimed upon the fact that at the time :plaintiff was injured he was in the dis­ charge of duties which rested on him by the terms of a contract between him and defendant which had been entered into in Alabama, and, hence, was an Alabama contract, in connection with the facts that plaintiff was and is a citizen of this State, and the defendant is an Alabama corporation. These latter facts-of citizenship and domicile respectively of plaintiff and defendant–are of no importance in this connection, it seems to us, further than this: they may tend to show that the contract was made here, which is not controverted, and if the plaintiff has a cause of action at all, he, by reason of them, may prosecute it in our courts. They have no bearing on the primary question of existence of a cause of action, and as that is the question before us, we need not further advert to the fact of plaintiff's citizenship or defendant's domicile.

The contract was that plaintiff should serve the defendant in the capacity of a brakeman on its freight train between Birmingham, Alabama, and Meridian, Mississippi, and should receive as compensation a stipulated sum for each trip from Birmingham to Meridian and return. The theory is that the Employer's Liability Act became a part of this contract; that the duties and liabilities which It prescribes became contractual duties and liabilities, or duties and liabilities springing out of the contract, and that these duties [136] attended upon the execution whenever its performance was required—in Mississippi as well as in Alabama—and that the liability prescribed for a failure to perform any of such duties attached upon such failure and consequent injury wherever it occurred, and was enforceable here because imposed by an Alabama contract notwithstanding the remission of duty and the resulting injury occurred in Mississippi, under whose laws no liability was incurred by such remission. The argument is that a contract for service is a condition precedent to the application of the statute, and that "as soon as the contract is made the rights and obligations of the parties, under the Employer's Act, became vested and fixed," so that "no subsequent repeal of the law could deprive the injured party of his rights nor discharge the master from his liabilities," &c., &c. I£ this argument is sound, and it is sound if the duties and liabilities pre­ scribed by the act can be said to be contractual duties and obligations at all, it would lead to conclusions the possibility of which has not hitherto been suggested by any court or law writer, and which, to say the least, would be astounding to the profession. For instance: If the act of 1885 becomes a part of every contract of service entered into since its passage, just "as if such law were in so many words expressly included in the contract as a part thereof," as counsel insist it did, so as to make the liability of the master to pay damages from injuries to a fellow-servant of his negligent employe, a contractual obligation, no reason can be conceived why the law existing in this regard prior to the pas­ sage of that act did not become in like manner a part of every contract of service then entered into, so that every such contract would be deemed to contain stipulations for the non-liability of the master for injuries flowing from the negligence of a fellow-servant, and confining the injured servant's right to damage to a claim against his negligent fellow-servant-the former, in other words, agreeing to look alone to the latter. There were many thousands of such contracts existing in this country and England at the time when statutes similar to section 2590 of our Code were enacted, there were indeed many thousands of such contracts existing in Alabama when that section became the law of this State. Each of these contracts, if the position of plaintiff as to our statute being embodied into the terms of his contract so that its duties were contractual duties, and its liabilities contractual obligations to pay money can be maintained, involved the assurances of organic provisions, State and Federal, of the continued non-liability of the master for the [137] negligence of his servants, notwithstanding the passage of such statutes. Yet these statutes were passed, and they have been applied to servants under pre-existing contracts as fully as to servants under subsequent contracts, and there has never been a suggestion even in any part of the commonlaw world that they were not rightly so applied. If plaintiff's contention is well taken, many a judgment has gone on the rolls in this State, and throughout the country, and has been satisfied, which palpably overrode vested rights without the least suspicion on the part of court or counsel that one of the most familiar ordinances of the fundamental law was being violated. Nay more, another result not heretofore at all contemplated would ensue. Contracts for serving partly in Alabama might be now entered into in adjoining States where the common-law rule still obtains, as in Mississippi, for instance, where the servant has no right to recover for the negligence of his fellow, and the assumption of this risk under the law becoming, according to the argument of counsel, a contractual obligation to bear it, such contracts would be good in Alabama and as to servants entering into them, our statute would have no operation even upon negligence and resulting injury within its terms occurring wholly in Alabama. And on the other hand, if this defendant is under a contractual obligation to pay the plaintiff the dam­ ages sustained by him because of the injury inflicted in Mississippi, the contract could be of course enforced in Mississippi and damages there awarded by its courts, not­ withstanding the law of that State provides that there can be no recovery under any circumstances whatever by one servant for the negligence of his fellow employe. We do not suppose that such a proposition ever has been or ever will be made in the courts of Mississippi. Yet that it should be made and sustained is the. natural and necessary sequence of the position advanced in this case. These considerations demonstrate the infirmity of plaintiff's position in this connection, and serve to show the necessity and propriety of the conclusion we propose to announce on this part of the case. That conclusion is, that the duties and liabilities incident to the relation between the plaintiff and the defendant which are involved in this case, are not imposed by and do not rest in or spring from the contract between the parties. The only office of the contract, under section 2590 of the Code, is the establishment of a relation between them, that of master and servant; and it is upon that relation, that incident or consequence of the contract, and not upon the rights of the parties under the contract, that our statute operates. The law is not con-[138]-cerned with the contractual stipulations, except in so far as to determine from them that the relation upon which it is to operate exists. Finding this relation the statute imposes certain duties and liabilities on the parties to it wholly regardless of the stipulations of the contract as to the rights of the parties under it, and, it may be, in the teeth of. such stipulations. It is the purpose of the statute and must bethe limit of its operation to govern persons standing in the relation of master and servants to each other in respect of their conduct in certain particulars within the State of Alabama. Mississippi has the same right to establish govern­ mental rules for such persons within her borders as Alabama; and she has established rules which are different from those of our law. And the conduct of such persons toward each other is, when its legality is brought in question, to he adjudged by the rules of the one or the other States as it falls territorially within the one or the other. The doctrine is like that which prevails in respect of other relations, as that of man and wife. Marriage is a contract. The entering into this contract raises up certain duties and imposes certain liabilities in all civilized countries. What these duties and liabilities are at the place of the contract are determinable by the law of that place ; but when the parties go into other jurisdictions, the relation created by the contract under the laws of the place of its execution will he recognized, but the personal duties, obligations and liabilities incident to the relation are such as exist under the law of the jurisdiction in which an act is done or omitted as to the legality, effect or consequence of which the question arises. It might as well he said where there is a marriage in Alabama and the parties remove to Mississippi, and the wife there makes a contract which is void in Mississippi but valid under our statute, and subsequently they return to Alabama, that our courts will enforce that contract, or if such husband while in Mississippi does an act which is innocuous and lawful in that State, but which if done here would entail liability upon him, and the parties afterwards return here, that the liability imposed by our laws could be enforced here, because the parties entered into the contract here, as that a master is liable here for conduct towards his servant which was proper, or at least involved no liability, where it took place, simply because the contract which created the relation was entered into in this State. The whole argument is at fault. The only true doctrine is that each sovereignty, state or nation, has the exclusive power to finally determine and declare what acts or [139] omission in the conduct of one to another, whether they be strangers or sustain relations to each other which the law recognizes, as parent and child, husband and wife, master and servant, and the like, shall impose a liability in damages for the consequent injury, and the courts of no other sovereignty can impute a damnifying quality to an act or omission which afforded no cause of action where it transpired. These propositions find illustration and support in the case of Whitford v. The Panama R. R. Co., 23 N.Y. 465, where the relation involved was that of carrier and passenger, a relation which had been created by a contract made in New York, between a corporation and a citizen thereof for carriage, commencing in that State and ending in San Francisco, via Panama and over the Panama railroad. The passenger was killed through the fault of the corporation's servants while being transported along this railroad. The law of New York gave to the personal representative of a person whose death was caused by the wrongful act or omission of another, a right of action therefor in all cases where the deceased, had the injury fallen short of death, could have recovered. It did not appear that the laws of New Granada where the injury was inflicted, authorized any recovery on the facts alleged and proved. It was urged, as here, that the domicile of the parties and the fact that they contracted in New York took the case out of general rules as to territorial limitations upon the operation of statutes, but the plaintiff was non-suited, it being held in effect that the laws of New Granada where controlling as to the duties and liabilities incident to the relation which existed between them, while the contract of carriage was being performed in that country, and that the carrier so far as care and diligence were concerned owed the passenger no duties there except such as were imposed upon the relation by the local law, and that no liability for negligence and its results not prescribed by that law rested on the company. And the court, inter alia, said: ·'Suppose the government of New Granada to have enacted that the proprietors of a railroad company should not be responsible for the negligence of its servants, provided there was no want of due care in selecting them; it could not be pretended that its will could be set at naught by prosecuting the corporation in the courts of another State where the law was different. . . . The true theory is, that no suit whatever respecting this injury could be sustained in the courts of this State, except pursuant to the law of international comity. By that law foreign contracts and foreign transactions, out of which liabilities have arisen, [140] may be prosecuted in our tribunals by the implied assent of the government of this State ; but in all such cases, we administer the foreign law as from the proofs we find it to be, or as without proofs, we presume it to be." So, in the case of Gray v. Jackson & Co., 51 N. H., 9, there was a contract of affreightment by the terms of which goods were to be carried out of one State into and through other States. They were lost in a State other than that in which the con­ tract was made and the carriage commenced. By the law of the place of the contract the carrier was liable for the loss under the circumstances shown in evidence had it occurred in that State. By the law of the State where the loss occurred, however, the carrier was not liable. In an action for the loss prosecuted in the State of the contract, the law, not of that State, but of the place of the loss which operated as to the particular transaction on the relation of shipper and carrier and prescribed the duties and liabilities incident to that relation in that State, regardless of the place where the contract creating the relation was entered into, was applied and made to determine the rights of the parties to be other than they were under the law of the place of the contract which was also, as here, the place of the forum.

The foregoing views will suffice to indicate the grounds of our opinion that the rights of this plaintiff are determinable solely by the law of the State of Mississippi, and of our conclusion that upon no aspect or tendency of the evidence as to the circumstances under which the injury was sustained and as to the laws of Mississippi obtaining in the premises was the plaintiff entitled to recover.

The general affirmative charge requested for defendant should have been given. The other very numerous assignments of error need not be considered.

For the error in refusing to instruct the jury to find for the defendant if they believed the evidence, the judgment is reversed and the cause will be remanded.

James P. Rea and S. Shay Samples of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellants.

Charles E. Sharp and Marcia E. Wright of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.

HOUSTON, Justice.

This case calls for the application of choice of law principles in a workmen's compensation context. The parties ask this Court to answer the following question: Does the filing of a claim and receipt of benefits pursuant to the Alabama Workmen's Compensation Act by one who has been injured in another state give rise to an exception to the Alabama conflicts rule of lex loci delicti for purposes of that person's co-employee suit; i.e., will Alabama law control disposition of the suit rather than the law of the state of injury?

The undisputed facts of this case are as follows:

Plaintiff Billy Powell, a resident of Alabama, was employed as a truck driver by Barber Pure Milk Company, an Alabama corporation. While en route back to Alabama from a pick-up of milk in Georgia, Powell wrecked his truck in Monroe, Georgia, and was injured. As a result, Powell filed for and received disability benefits pursuant to the Alabama Workmen's Compensation Act. Code 1975, § 25-5-1, et seq.

Powell then brought an action in Alabama against two of his co-employees, Ronald Sappington and Coster Smith, for their alleged negligence in failing to inspect, repair, service, and maintain his truck. Powell's wife Carolyn joined in that suit as co-plaintiff, alleging loss of her husband's services.

Sappington and Smith moved for summary judgment on the grounds that Georgia law applies to the action against them and that Georgia law forbids co-employee suits. The trial court granted the motion and entered a final judgment pursuant to Rule 54(b), Ala.R.Civ.P.

The Powells appeal, arguing that because Powell elected to pursue his remedy under the Alabama Workmen's Compensation Act rather than under the Georgia Workmen's Compensation Act, Alabama law rather than Georgia law applies to their action against Sappington and Smith. Because Alabama law permits co-employee suits, they argue that summary judgment was improperly entered. We do not agree.

This Court reaffirmed in Norris v. Taylor, 460 So.2d 151 (Ala.1984), that the conflicts rule of lex loci delicti applies to tort [570] actions brought in this state. As the Court stated in that decision, "[u]nder [lex loci delicti], an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred." 460 So.2d at 152. Application of this rule in the instant case would require us to follow the law of Georgia, the state where Powell's injury occurred. In doing so, we would be constrained to affirm the trial court's entry of summary judgment, since Georgia law forbids co-employee suits where workmen's compensation is available.^[1]

In essence, the Powells argue that an exception to the lex loci delicti rule is applicable in a workmen's compensation context where an injured employee invokes that exception by electing to accept benefits under the workmen's compensation act of his state of employment and not of the state where the injury occurred. Recognition of such an exception, however, would create a broad avenue for abuse. As another court has stated, "[adoption of this exception would allow] a claimant with a choice of jurisdictions in a compensation claim ... to juggle with the substantive law uniformly applied ... and thus defeat its application." Wardell v. Richmond Screw Anchor Co., 133 Ga.App. 378, 382, 210 S.E.2d 854, 857 (1974). We therefore hold that a claimant who is injured in another state cannot evade the application of the lex loci delicti rule merely by filing his workmen's compensation claim in Alabama.

Although we reject the exception claimed by the Powells, our inquiry is not yet at an end. It is eligibility for benefits under the workmen's compensation act of the state of the employee's injury, not whether a claim for benefits was made or received in Alabama, which determines whether a bar to a common law action exists. Wilson v. Fraser, 353 F.Supp. 1 (D.Md.1973); Security Insurance Group v. Plank, 133 Ga.App. 815, 212 S.E.2d 471 (1975). It becomes necessary, therefore, to determine whether Billy Powell was eligible for compensation under the Georgia Act. If not, he may be able to pursue his co-employee suit under principles of Georgia law. If so, however, he will be subject to its bar against co-employee suits.

Georgia Code 1981, § 34-9-1, defines "employee" for purposes of workmen's compensation as "every person in the service of another under any contract of hire or apprenticeship...." It does not by its terms exclude coverage for nonresident employees of nonresident employers. Moreover, the Georgia Court of Appeals in Security Insurance Group v. Plank, supra, held that, under Georgia law, jurisdiction in a workmen's compensation case attaches when an employee suffers an accidental injury in Georgia, regardless of the employee's residence or where he contracted for employment. Thus, nothing in the law of Georgia would have prevented Billy Powell from receiving workmen's compensation benefits under the Georgia Act. That being so, the Powells' suit against Sappington and Smith is prohibited by Georgia law; thus, the trial court's entry of summary judgment in favor of Sappington and Smith was proper.

The judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, SHORES, BEATTY and STEAGALL, JJ., concur.

JONES, ALMON and ADAMS, JJ., dissent.

JONES, Justice (dissenting).

I respectfully dissent.

[571] Employed in Alabama and injured in Georgia, Powell could have filed for workmen's compensation benefits under either the law of Alabama (the site of his employment), or the law of Georgia (the site where the injury occurred). See, Code 1975, § 25-5-35. See, also, Restatement (Second) Conflict of Laws § 181 (1969). Because he elected to pursue his remedy under the Alabama Workmen's Compensation Act, Powell invoked that Act in its entirety. Therefore, Powell's right to a cause of action for personal injury against his co-employees is also derived from the Alabama statute:

"Where the injury or death for which compensation is payable under this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not such party is subject to the provisions of this chapter, the employee, or his dependents in case of his death, may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and, at the same time, may bring an action against such other party to recover damages for such injury or death, and the amount of such damages shall be ascertained and determined without regard to this chapter." Code 1975, § 25-5-11. (Emphasis supplied.)

The majority cites our recent reaffirmance of the conflict of laws rule of lex loci delicti as applied to tort actions in Alabama (see Norris v. Taylor, 460 So.2d 151 (Ala.1984)) as support for its holding that Georgia law governs Powell's right to sue his co-employees. I have no problem with this general rule, in a non-workmen-compensation context, requiring that an injured party's substantive rights be determined by the law of the state where the injury occurred, even where, as here, the alleged negligence occurred in Alabama. Indeed, this rule was correctly applied in Norris, because in that case "the record fail[ed] to disclose any allegations or proof that the employee [had] pursued, or [was] pursuing, his workmen's compensation claims under the Alabama Act." See Norris, 460 So.2d at 153 (Jones, J., concurring in the result). There is, however, a critical distinction between the facts in Norris and the facts of the instant case which, I believe, requires us to apply here the workmen's compensation exception to the general conflict of laws rule.

By electing to file for and accept benefits under the workmen's compensation law of his state of employment (here, Alabama), and not under the workmen's compensation law of the state in which he was injured, Powell necessarily subjected himself to Alabama's entire workmen's compensation statute. He took its limitations and restrictions, as well as its benefits. Western Union Telegraph Co. v. George, 239 Ala. 80, 194 So. 183 (1940). In Norris, there was no affirmative showing that the injured employee claimed workmen's compensation benefits in Alabama (the state of his employment) rather than in Kentucky (the state where the injury occurred). Powell, however, did file for and did receive workmen's compensation benefits in Alabama— the state of his employment; therefore, he is entitled to the substantive right of a cause of action for personal injury against his co-employees. § 25-5-11. See, also, Elston v. Industrial Lift Truck Co., 420 Pa. 97, 216 A.2d 318 (1966). (The accident in question occurred before the effective date of the 1984 amendment restricting third-party claims against co-employees. See Act No. 85-41, § 3, Second Special Session, 1984-85 Ala. Acts.)

From the very inception of this State's Workmen's Compensation Act in 1919, an injured employee's right to recover from a third party has been regulated by the Act. Originally, a "third party" did not include any employer covered by the Act. Harris v. Louisville & N.R. Co., 237 Ala. 366, 186 So. 771 (1939). The 1939 amendment redefined "third party" to include "any party other than the employer, whether or not such party is subject to the provisions of this chapter." Act 661, § 8, Ala. Acts 1939; now codified at § 25-5-11(a), 1975 Code. The 1984 amendment (effective Feb. 1, 1985) further restricts third-party claims against co-employees, allowing recovery [572] for willful injury only. In other words, the public policy of the Workmen's Compensation Act, which subjects employers and employees to its provisions, also controls the right of injured employees to bring third-party claims. Here, having elected coverage under Alabama's Act, Powell is entitled to all its provisions, including the third-party provisions of § 25-5-11. The "forum shopping" evil described in the majority opinion is hardly justified in light of the public policy expressed in § 25-5-35 that gives an injured employee the right to proceed under Alabama's Workmen's Compensation Act even if he first recovers under the workmen's compensation act of another state. Sager v. Royce Kershaw Co., 359 So.2d 398 (Ala.Civ.App.1978).

In my opinion, the majority has misapplied the traditional conflict of laws rule to the facts of this case. The traditional lex loci delicti rule still has full application to the trial of the third party common law action. It is the Georgia law, not the Alabama law, that governs the trial of this case in Alabama. But nothing in this conflict of laws rule requires us to apply the statutory law of Georgia—the workmen's compensation act not here invoked—to exclude the injured employee's right to bring the third party action. See Norris, 460 So.2d at 153 (Jones, J., concurring in the result).

ALMON and ADAMS, JJ., concur.

[1]Georgia Code 1981, § 34-9-11, which provides for co-employee immunity, reads in pertinent part as follows:

"The rights and remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer...." (Emphasis added.)

Donald W. Vasos, of Vasos, Kugler & Dickerson, of Kansas City, argued the cause and Stephen G. Dickerson, of the same firm, was with him on the briefs for appellant.

Mark V. Parkinson, of Payne & Jones, Chartered, of Olathe, argued the cause, and Keith Martin, of the same firm, was with him on the brief for appellee.

[630] The opinion of the court was delivered by

SCHROEDER, C.J.:

Lyllis Ling (plaintiff-appellant) brought this action in the trial court alleging negligence on the part of Jan's Liquors (defendant-appellee) in selling alcohol to a minor whose intoxication allegedly resulted in a car accident causing plaintiff's injury. Ling appeals from an order and judgment dismissing her complaint against defendant on the ground that it fails to state a claim upon which relief can be granted pursuant to K.S.A. 60-212(b). We affirm the decision of the trial court.

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, Ling is afforded the safeguard of having all her allegations taken as true and all inferences drawn favorably to her. Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238 (1983). Applying that principle, we look to the complaint for the facts. It alleges:

At approximately 1 a.m., on Sunday, February 3, 1980, Ling was driving her automobile east on Johnson Drive in Fairway, Johnson County, Kansas, when the vehicle became disabled. Ling left the vehicle and was standing beside it when she was struck by a vehicle driven by Richard Shirley. At that time Shirley was nineteen years old and a minor under Missouri law governing the sale of intoxicating liquors to minors.

At the time of the accident, Shirley was operating a motor vehicle under the influence of alcohol. A blood alcohol examination taken at Shawnee Mission Medical Center, Overland Park, Kansas, showed a blood alcohol concentration of 0.30 percent by weight.

The petition also alleges that Jan's Liquors, a Missouri retail liquor establishment, sold or provided to Richard Shirley on the night of February 2, 1980, an alcoholic beverage which rendered him incapable of operating a motor vehicle.

On February 3, 1982, Ling filed a petition in the District Court of Johnson County, Kansas, seeking damages for the injuries she received which resulted in the amputation of both her legs. On July 20, 1983, the defendant filed a motion to dismiss pursuant to K.S.A. 60-212(b).

The district court granted the motion to dismiss, concluding (1) "there is no liquor vendor liability in Kansas and there is no indication that the Kansas Supreme Court will impose the same"; (2) Kansas law and not Missouri law should apply to the [631] instant action; and (3) the Kansas long-arm statute would apply to give the court in personam jurisdiction in the case.

Initially, we must ascertain whether the trial court erred in finding the Kansas long-arm statute (K.S.A. 60-308b) applied to give it in personam jurisdiction over Jan's Liquors, a nonresident defendant. The trial court based its finding on K.S.A. 60-308(b)(7), which provides:

"(b) Submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual's personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:

....

"(7) causing to persons or property within this state any injury arising out of an act or omission outside of this state by the defendant if, at the time of the injury either (A) the defendant was engaged in solicitation or service activities within this state; or (B) products, materials or things processed, serviced or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of trade or use."

The defendant argues that this section of the Kansas long-arm statute is limited to products liability cases. We agree.

In order for personal jurisdiction to be obtained under K.S.A. 60-308(b)(7), the defendant must have had the type of contact within the state as defined in either alternative (A) or (B). In other words, the defendant must either have been engaged in solicitation or service activities within the state, or the product which was the cause of injury must have been used or consumed within the state in the ordinary course of trade or use. In Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128 (1968), this court recognized that the legislative intent of K.S.A. 60-308(b)(7) was to grant in personam jurisdiction to the courts of this state over those who engage in the manufacture, sale, or servicing of products if they receive or can anticipate some direct or indirect financial benefit from the sale, trade, use or servicing of their products within this state.

We find that the sale by an out-of-state liquor vendor to an occasional Kansas customer does not fit within the provisions of either alternative (A) or (B). Moreover, based on our analysis of legislative intent in Tilley, we find the liquor vendor is not the kind of defendant the legislature intended to reach when it [632] enacted K.S.A. 60-308(b)(7). Therefore, the trial court erred by relying on K.S.A. 60-308(b)(7).

An Illinois court met with a similar factual setting and jurisdictional issue in Wimmer v. Koenigseder, 128 Ill. App.3d 157, 470 N.E.2d 326 (1984). In that case, the plaintiff brought suit on behalf of the decedent whose death resulted from injuries she received in a car accident in Illinois. The defendant-driver who caused the accident, a minor for purposes of Illinois law, had been served alcohol in a nearby Wisconsin tavern where he was of legal drinking age. The plaintiff brought suit in Illinois against the Wisconsin liquor vendor. The trial court dismissed for lack of jurisdiction. The appellate court reversed and held, in part, that Illinois had in personam jurisdiction under the section of its long-arm statute which provides jurisdiction over any person who commits a "tortious act within this State." Ill. Ann. Stat. ch. 110, § 2-209(a)(2) (Smith-Hurd 1983). The court stated, "For the purposes of the long-arm statute, `physical presence is not necessary for the commission of a tortious act within this State; ... the place of a wrong is where the last event takes place which is necessary to render the actor liable.' [Citations omitted.]" 470 N.E.2d at 331. The court found the "last event" was the injury in Illinois. The fact that the sale occurred entirely in another state was of no consequence. The court further found that due process requirements of "minimum contracts" were met.

K.S.A. 60-308(b)(2) is similar to the provision relied on by the Illinois court. It provides jurisdiction over any person who commits a "tortious act within this state."

In the case at bar, the negligent act (selling liquor to a minor) was committed outside this state, while the injury occurred within this state. Therefore, in order for K.S.A. 60-308(b)(2) to apply, it must be found that an injury which occurs in this state as a result of a negligent act outside this state is equivalent to the commission of a "tortious act within the state." This is a question of first impression in Kansas.

Vernon's Kansas C. Civ. Proc. § 60-308 (1965) contains several articles discussing the Kansas long-arm statute. Each article concludes that if the injury caused by a tortious act occurs within this state, even though the first part of the tortious act took place outside the state, the occurrence of the injury is sufficient for establishing personal jurisdiction under (b)(2).

Other jurisdictions, in interpreting provisions similar to K.S.A. [633] 60-308(b)(2), have given the term "tortious act" a broad interpretation, deeming it to imply the whole continuum of actions involved, rather than a single act. Vandermee v. Dist. Ct., 164 Colo. 117, 433 P.2d 335 (1967); see also Jack O'Donnell Chevrolet, Inc. v. Shankles, 276 F. Supp. 998 (N.D. Ill. 1967); Gray v. Amer. Radiator & Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). Under this interpretation, the "tortious act" is not complete until the injury has occurred. In other words, the "tortious act" is deemed to have occurred in the state where the injury occurs.

In J.E.M. Corp. v. McClellan, 462 F. Supp. 1246 (D. Kan. 1978), it was held that a fraudulent misrepresentation made from without the jurisdiction (telephone calls) which cause tortious injury within the jurisdiction constituted a "tortious act" in this state within the meaning of K.S.A. 60-308(b)(2). The court found that a sufficient constitutional basis for the exercise of jurisdiction existed and arose out of the intentional tortious act causing injury to a resident in the forum on a claim for damages arising from that act.

Even though the McClellan case involved an intentional tort while the case at bar involves negligence, we find the reasoning in McClellan is applicable. In McClellan, the "tortious act" included both the misrepresentations from outside the state and the resulting injury in Kansas. In the case at bar, the "tortious act" included both the selling of the liquor in Missouri and the injury to the plaintiff in Kansas. The act was completed in Kansas. Therefore, we hold that under the provisions of K.S.A. 60-308(b)(2), it is possible to bring suit in Kansas to recover damages for injuries occurring in this state which resulted from negligent conduct outside the state.

This holding is consistent with our oft-repeated assertion that the long-arm statute should be liberally construed to assert jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the Fourteenth Amendment to the U.S. Constitution. Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P.2d 1248 (1974); Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 (1968).

Accordingly, we find the trial court reached the correct result for the wrong reason, and so its decision on this point is upheld. Strehlow v. Kansas State Board of Agriculture, 232 Kan. 589, 592, 659 P.2d 785 (1983).

[634] The plaintiff next contends the trial court erred in finding that Kansas substantive law governed the action.

Under Missouri law, a tavern owner can be held civilly liable for selling intoxicating liquor to a minor. Ling argues that the rule in Kansas is that the law of the state where the tort occurred is applied to determine the substantive rights of the parties; that the tort in this case was the wrongful sale of the intoxicating liquor to a minor; and, therefore, Missouri substantive law should apply. Jan's Liquors argues that Kansas courts are to apply the law of the state where the injury occurred and, since the injury in this case occurred in Kansas, Kansas law should govern.

The rule in this state is that the law of the state where the tort occurred — lex loci delicti — should apply. McDaniel v. Sinn, 194 Kan. 625, 400 P.2d 1018 (1965); Pool v. Day, 141 Kan. 195, 40 P.2d 396 (1935). However, this court has never addressed the conflict of law issue in a multistate tort action — that is, where the negligent act originated outside the state, but the resultant injury occurred in the state. In Swearngin v. Sears, Roebuck & Company, 376 F.2d 637, 639 (10th Cir.1967), the court stated:

"`[T]he general rule is that where an act of omission or commission occurs at one place and resulting death, personal injury, or damage takes place at another, the situs of the actionable wrong is the place at which the death, personal injury or property damage takes place.'"

Ling acknowledges that under the doctrine of lex loci delicti, the situs of the injury determines the governing law. However, she argues that in this type of case, the accident site is overshadowed by the location of the unlawful sale of liquor. Ling suggests that this court should adopt an analytical approach to determine whose law should govern. The "analytical approach" has been adopted by a number of courts in recent years. It allows the court to resolve the choice of substantive law by giving to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual situation, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation. See Annot., 29 A.L.R.3d 603; Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66 (1966); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968). We reject the analytical approach for determining what law should govern the substantive rights of the parties.

We hold that in an action for recovery of damages for injuries [635] sustained in Kansas which were the result of a negligent act in another state, the liability of the defendant is to be determined by the laws of this state. Accordingly, the trial court did not err by applying Kansas law.

The final issue is whether Kansas recognizes a claim for relief against one furnishing liquor to a minor in favor of those injured as a consequence of the minor's intoxication.

Kansas does not have a dram shop act. Further, there has been no judicial imposition of dram shop liability in this state. Therefore, the question we are faced with is whether — in the absence of a dram shop act — this court should impose liability on the defendant, thus creating a new cause of action in this state.

Ling argues that we should impose liability upon the defendant on the basis of common-law principles of negligence or negligence per se. Jan's Liquors argues that in the absence of a special dram shop act specifically creating a civil remedy and civil cause of action against the commercial purveyor of intoxicants, no remedy or cause of action can be maintained.

At common law, and apart from statute, no redress existed against persons selling, giving, or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, either on the theory that the dispensing of the liquor constituted a direct wrong or that it constituted actionable negligence. This rule was based on the theory that the proximate cause of the injury was the act of the purchaser in drinking the liquor and not the vendor in selling it. See, e.g., State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951); 45 Am.Jur.2d, Intoxicating Liquors § 553. This court recognized the common-law rule of nonliability for a liquor vendor in Stringer v. Calmes, 167 Kan. 278, 205 P.2d 921 (1949).

In recent years, many states have retreated from or have abrogated the strict common-law rule. Fourteen states now have dram shop statutes which give, generally, a right of action to persons injured in person, property, or means of support, by an intoxicated person, or in consequence of the intoxication of any person, against the person selling or furnishing the liquor which caused the intoxication in whole or in part. See appendix.

Courts in 29 jurisdictions, including the District of Columbia, have judicially abrogated the common-law doctrine of no liability. See appendix. Six states with dram shop laws have judicially imposed liability in some form. See appendix. Many of the [636] jurisdictions which now recognize a common-law right of action do so on the premise that the serving of liquor to a minor or an inebriated person initiates a foreseeable chain of events for which the tavern owner may be held liable. See, e.g., Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977). Others of these jurisdictions conclude that criminal statutes in force in their jurisdiction which proscribe sales of intoxicants to minors or inebriated persons establish a standard of conduct for tavern owners and their employees, deviation from which may constitute negligence per se. See, e.g., Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). These courts reason that the criminal statutes represent public policy and public interest in preventing injury to those specific classes incompetent to handle intoxicating liquors as well as injury to the public at large.

Six states which do not have dram shop laws have refused to impose liability judicially. See appendix. These jurisdictions have considered, but declined to follow, the new trend of cases, because they find the issue is one of public policy which is best left to the legislative body. These courts refuse to find negligence per se on the ground that the criminal statutes were intended to be purely regulatory in nature and were not intended to create a civil cause of action.

By way of historical background to aid in a better understanding of the problems involved in this appeal, we point out that the territorial legislature of Kansas enacted a dram shop act in 1859. That law included a civil damage statute which provided a cause of action against the seller, barterer or giver of intoxicating liquors for damage or injury caused "by any intoxicated person or in consequence of intoxication." The statute was included in the 1881 revision of the statutes (L. 1881, ch. 128, § 15) and again in 1923 when it was designated R.S. 1923, 21-2150 and stated:

"Every wife, child, parent, guardian or employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent or guardian, employer or other person shall have a right of action, in his or her own name, against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parents, guardian, or next friend, as the court shall direct; and all suits for damages under this act shall be by civil action in any of the courts of this state having jurisdiction thereof."

[637] Several Kansas cases have discussed and upheld the constitutionality of the statute. See Coy v. Cutting, 138 Kan. 109, 23 P.2d 458 (1933); Zibold v. Reneer, 73 Kan. 312, 85 Pac. 290 (1906); Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753 (1899).

On November 2, 1948, the citizens of this state voted to amend art. 15 of the Constitution of the State of Kansas. The result was that only the open saloon is now prohibited in this state. (Art. 15, § 10, Constitution of Kansas.) The new constitutional provision gave the legislature the power to regulate, license, and tax the manufacture and sale of intoxicating liquors and to regulate the possession and transportation of intoxicating liquors.

In 1949 the legislature repealed certain statutes under the "Bone-Dry Law" (ch. 41 — Intoxicating Liquors), because the Kansas constitutional prohibition against the manufacture and sale of intoxicating liquors had been repealed. The legislature, exercising its power, enacted the "Kansas Liquor Control Act." (Ch. 41, art. 1 through art. 27.) The new act regulated the manufacturing, bottling, blending, selling, bartering, transportation, delivery, furnishing or possessing of alcoholic liquor. The Act was a comprehensive plan to regulate liquor from the time of its manufacture within the state or importation into the state until it was ultimately sold by a licensed retailer for use or consumption. Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 752, 408 P.2d 877 (1965). Included in the Act was the prohibition against the sale of intoxicating liquors to minors and incompetents. G.S. 1949, 41-715 stated:

"No person shall knowingly or unknowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any minor; and no such minor shall represent that he is of age for the purpose of asking for, purchasing or receiving alcoholic liquor from any persons, except in cases authorized by law. No person shall knowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any person who is mentally incompetent, or any person who is physically or mentally incapacitated by the consumption of such liquor.... [L. 1949, ch. 242, § 78; March 9.]"

The statute also provided for a fine or imprisonment.

The 1949 legislature — the same legislature which enacted the criminal regulatory statute — chose not to reenact the dram shop act. It was repealed in G.S. 1949, 41-1106, and has never been reenacted.

The 1949 law prohibiting sale of intoxicating liquor to minors was amended in 1963 (L. 1963, ch. 267, § 1) and in 1965 (L. 1965, ch. 277, § 8). K.S.A. 41-715 now states:

[638] "No minor shall represent that he is of age for the purpose of asking for, purchasing or receiving alcoholic liquor from any person except in cases authorized by law. No minor shall attempt to purchase or purchase alcoholic liquor from any person. No minor shall possess alcoholic liquor. No person shall knowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any person who is an incapacitated person, or any person who is physically or mentally incapacitated by the consumption of such liquor. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than two hundred dollars ($200) or by imprisonment for not to exceed thirty (30) days, or both such fine and imprisonment in the discretion of the court. [L. 1949, ch. 242, § 78; L. 1963, ch. 267, § 1; L. 1965, ch. 277, § 8; June 30.]"

The 1965 legislature enacted L. 1965, ch. 277, § 7, making it a crime for any person to knowingly or unknowingly sell to, buy for, give to, or furnish, either directly or indirectly, any intoxicating liquor to any person under the age of twenty-one years. That statute, K.S.A. 1965 Supp. 38-715, included a provision revoking the retail liquor license issued under K.S.A. 41-308 of any retailer who violated the statute. The revocation penalty was later repealed when K.S.A. 21-3610 was enacted in 1969. When the legislature enacted that statute in 1969, it omitted the phrase "knowingly or unknowingly," making the present violation a general intent crime.

Since the legislature's repeal of the civil liability statute in 1949, there has been no reported Kansas case asserting the liability to third persons of one selling or furnishing liquor. The last case to discuss the dram shop statute was Stringer v. Calmes, 167 Kan. 278, which was decided in 1949 prior to the repeal of the act. In that case the court held, unequivocably, that no common-law right of action existed.

In recent years, the Kansas legislature has made control of drunken drivers a high priority matter. Significant legislation has tightened the laws which deal with such offenses. The legislature of this state has considered all aspects of the problem of drunken driving in seeking solutions to the problem.

In 1984, limited dram shop legislation was introduced. (H.B. 2661). The proposed bill imposed liability on any person negligently selling or furnishing alcoholic beverages to a minor where the minor, under the influence thereof, caused death, personal injury or property damage to another. The bill died after it was passed out of committee.

On January 3, 1985, dram shop legislation was proposed by the [639] Kansas Attorney General. A press release of that date from his office states in part:

"Attorney General Robert T. Stephan has written letters to the newly appointed chairmen of the House and Senate Judiciary committees urging consideration of a dram shop law in Kansas, along with other measures to stiffen the state's drunk driving laws.

"Stephan wrote the letters to Senator-elect Robert Frey, Chairman of the Senate Judiciary Committee and Rep. Joe Knopp, Chairman of the House Judiciary Committee.

"The dram shop law Stephen proposes would give persons injured by an intoxicated person, their families and employers the specific right to sue stores selling package liquor or beer, private clubs and taverns. The clubs, taverns and stores could be found liable for damages if they sold beer or liquor to a person who already was intoxicated, or served them alcohol to the point of intoxication, provided that the intoxication contributed to the injury."

Five days later (January 8, 1985) another press release from the Attorney General's Office stated:

"Attorney General Robert T. Stephan said today he will advise the chairmen of the Judiciary committees he is modifying his proposals to combat drunk driving.

"`If you have decided that you have come up with a bad idea that you have a responsibility to say so,' Stephan said. `I have the courage to make suggestions for legislative study, and also have the courage to know when my proposals to deter drunk driving should be modified.

"`Upon reexamination, I believe that existing law can be strengthened to better combat drunk driving. The dram shop law which I proposed would only add to legal entanglements. Therefore, I am withdrawing my suggestion that a dram shop law be enacted and will continue to study further means to deal with drunk driving.'"

With this historical background in mind, we again turn to the plaintiff's arguments. Ling contends that the violation of K.S.A. 21-3610 and K.S.A. 41-715 (establishing criminal penalties for sale of alcoholic liquor to a minor) is a breach of a duty imposed by law and, thus, negligence per se. In other contexts this court has recognized the rule that breach of a duty imposed by law or ordinance is negligence per se, and that damages may be predicated on its violation if the breach is the proximate cause of the injury or damages or substantially contributes to the injury. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980); Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 260, 320 P.2d 1061 (1958). We decline to find negligence per se in this case since to do so would subvert the apparent legislative intention.

The predecessor to K.S.A. 41-715 (of which K.S.A. 21-3610 was once a part) was first enacted in 1949, the same year the dram [640] shop act was repealed. Since that time, the legislature, although it has considered it, has not re-created a civil cause of action in favor of those injured as a result of a violation of the liquor laws. Clearly, the legislature would have done so had it intended for there to be a civil cause of action. K.S.A. 41-715 prohibits the dispensing of intoxicating liquors to certain classes of persons and is a comprehensive act to regulate the manufacture, sale, and distribution of alcoholic liquors. The legislature did not intend for it to be interpreted to impose civil liability. Therefore, we hold that the Missouri liquor vendor's violation of a criminal regulatory statute was not negligence per se.

As previously noted, the common-law rule is that, in the absence of legislation, the suppliers of alcohol are not liable to the victims of an intoxicated tortfeasor. Stringer, 167 Kan. 278. The common law remains in force in this state where the constitution is silent or the legislature has failed to act. K.S.A. 77-109. However, the common law is not static. It is subject to modification by judicial decision in light of changing conditions or increased knowledge where this court finds that it is a vestige of the past, no longer suitable to the circumstances of the people of this state. Indeed, we have not hesitated to adopt a new cause of action by judicial decision where we have determined that course was compelled by changing circumstances. See, e.g., Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974) (creating new cause of action of intentional infliction of emotional distress); McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982) (creating new cause of action for negligent entrustment). See also Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983).

Although empowered to change the common law in light of changed conditions, this court recognizes that declaration of public policy is normally the function of the legislative branch of government. Whether Kansas should abandon the old common-law rule and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon what best serves the societal interest and need. Clearly, this is a matter of public policy which the legislature is best equipped to handle.

The court in Holmes v. Circo, 196 Neb. 496, 504-05, 244 N.W.2d 65 (1976), made the following astute observation with which we agree:

[641] "We are mindful of the misery caused by drunken drivers and the losses sustained by both individuals and society at the hands of drunken drivers, but the task of limiting and defining a new cause of action which could grow from a fact nucleus formed from any combination of numerous permutations of the fact situation before us is properly within the realm of the Legislature.

"The imposition of a common law duty of due care would create a situation rife with uncertainty and difficulty. If the commercial vendor is liable for negligence, does the host at a social gathering owe a duty to prospective victims of guests? The difficulties of recognizing intoxication and predicting conduct of an intoxicated patron without imposing some duty of inquiry are evident. Problems could also arise in the apportionment or sorting out of liability among the owners of various bars visited on `bar hopping' excursions. The correct standard of care to be used also presents a problem, as does the determination of whether all acts of the patron, including intentional torts, should be included within the liability of the tavern owner or operator."

In the final analysis, we find the decision should be left to the legislature.

Accordingly, we affirm the trial court's finding that the plaintiff failed to state a claim upon which relief could be granted.

HOLMES, J., concurring in part and dissenting in part:

I concur with the majority opinion that under the common law as it exists in this state there is no liability in this case and that the trial court was correct in dismissing plaintiff's case for failure to state a cause of action. When the legislature, in 1949, repealed R.S. 1923, 21-2150, it would appear obvious that it intended the common law to prevail. As pointed out by the majority opinion, the legislature has, on numerous occasions, revised our liquor control laws but has failed to re-enact legislation creating the cause of action sought by plaintiff and it is not our position to do so. Hence, I agree with the result reached by the majority opinion.

I disagree with that portion of the opinion which would apply long-arm jurisdiction under K.S.A. 60-308(b)(2) to the facts of this case. The tortious act of the defendant in selling liquor to a minor in Missouri is too far removed from the auto accident occurring hours later, in Kansas, to be considered the "commission of a tortious act within this state" as required by the statute. While plaintiff's unfortunate injuries were suffered in Kansas, they were not, in my opinion, the result of any tortious act committed in Kansas by Jan's Liquors. The tortious act of this defendant was complete upon the sale of the liquor in Missouri. There are not [642] sufficient minimum contacts in this case to justify personal jurisdiction under the long-arm statute. See Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945); Schlatter v. Mo-Comm Futures, Ltd., 233 Kan. 324, 662 P.2d 553 (1983).

McFARLAND and HERD, JJ., join in the foregoing concurring and dissenting opinion.

LOCKETT, J., concurring and dissenting:

I concur with the majority that: (1) under the provisions of K.S.A. 60-308(b)(2) it is possible to bring suit in Kansas to recover damages for injuries occurring in this state which resulted from negligent conduct outside the state; and (2) in an action for recovery of damages for injuries sustained in Kansas which were the result of a breach of a duty in another state, the liability of the defendant is to be determined by the laws of this state.

I cannot agree with the majority's denial of a right of action to persons injured in person, property or means of support, by an intoxicated person, or in consequence of the intoxication of any person, against the person illegally selling or furnishing the liquor which caused the intoxication in whole or in part. In reaching this conclusion, the majority, by denying that a cause of action exists, misapplies the common law, the legislature's acts and prior decisions of this court.

The majority, citing State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951), and 45 Am.Jur.2d, Intoxicating Liquors § 553, states, "At common law, and apart from statute, no redress existed against persons selling, giving, or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, whether on the theory that the dispensing of the liquor constituted a direct wrong or constituted actionable negligence." The Am.Jur.2d citation actually states, "At common law it is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and it has been frequently held that in the absence of statute, there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished. The reason usually given for this rule is that the drinking of the liquor, not the furnishing of it, is the proximate cause of the injury.... [O]ne cannot become intoxicated by reason of liquor furnished him if he does not drink it."

[643] When the driver, Shirley, was furnished intoxicating liquor in this case he was not an able-bodied man. He was a minor. There is a statute in Kansas, as well as a similar one in Missouri, which prohibits the sale or furnishing of intoxicating liquor to a minor. K.S.A. 41-715. Clearly the common law is not a bar to Ling's action against the vendor who illegally furnished intoxicating liquor not to an able-bodied man, but to a minor.

The common law of England is the basic component of the common law adopted in the United States. Even if the common law is as the majority states, the courts of this country are not required to adhere to the decisions of the English common law courts unless such law is adopted by the state courts or by legislative enactment in aid of the general statutes.

Constitutional or statutory provisions in most states expressly declare the common law to be in force. The 1868 General Statutes of the State of Kansas, ch. 119, sec. 3 (now K.S.A. 77-109) provided that the common law shall remain in force in aid of the general statutes. The common law has been continuously incorporated into our law by our legislature to fill the voids in law where the constitution is silent or the legislature and the courts have failed to act.

When our legislature adopted the rule the common law was to remain in force in aid of the general statutes, it recognized that the common law was modified by our constitution and can be modified by the legislature when it enacts new laws or repeals old laws. The legislature also recognized that the common law can be modified by the courts when rendering judicial decisions and when the conditions and wants of the people require action (K.S.A. 77-109).

The courts of this state have never maintained that the common law is static and must be used to maintain the status quo. Like the Constitution of the United States and the constitution of this state, the common law grows as it is applied to new situations or as a need arises. The common law is judge-made and judge-applied. It is not to be followed blindly and can be changed when conditions and circumstances require if the prior law is unjust or has become bad public policy. In the past, this court has expanded the common law to meet the requirements of a modern society. It would be unfortunate to our economy and our developing society if we should cease to engage in the [644] common-law tradition of judicial expansion which adapts the law to the ever-changing needs and demands of a dynamic society.

The general principle of negligence law is that every person owes a duty to avoid creating situations which pose an unreasonable risk of harm to others. Negligence exists where the duty owed by one person to another is breached. Further, if recovery is to be obtained for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) that the person was damaged by that negligence. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).

In 1974, we recognized that an action exists against one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another. Dawson v. Associates Financial Services Co., 215 Kan. 814, 820, 529 P.2d 104 (1974). In McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982), we determined that parents who knowingly and negligently furnish a car to their son, who by reason of age, experience, mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care, are responsible for the injuries caused by their negligent entrustment of the automobile to their son. In Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983), there was evidence that an architect-engineer had actual knowledge of safety standards contained in a construction contract and had actual knowledge that the prescribed safety precautions were not being followed by the contractor. We imposed a duty upon the architect-engineer to take reasonable action to prevent injury to the contractor's employees. In Durfliger v. Artiles, 234 Kan. 484, where a state hospital physician, as part of his employment, participated in a hospital team which recommended that a committed patient be discharged because he was no longer dangerous to himself or others, we imposed a duty upon that physician to use reasonable and ordinary care and discretion in making the recommendation to release the patient. The duty imposed to protect was a duty owed to both the patient and the public. In each of these cases where this court imposed a duty for a negligent act, the defendants did not purposefully violate a law.

We have recognized there is a distinction between "negligence" and "negligence per se." Negligence must be found by [645] the jury from the evidence, while "negligence per se" results from a violation of law or ordinance. Kansas follows the rule that a breach of duty imposed by law or ordinance is negligence per se, and liability in damages can be predicated on violation of that law where that breach is the proximate cause of the injury or damages or substantially contributes to the injury. Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 260, 320 P.2d 1061 (1958).

The majority states that a breach of a duty imposed by law or ordinance is negligence per se, unless the legislature clearly did not intend to impose civil liability for the breach. It states that K.S.A. 41-715, which prohibits the dispensing of alcoholic liquors to certain classes of persons, was intended by the legislature to regulate the sale of liquor and was not intended to impose civil liability. It concludes that K.S.A. 41-715, while imposing criminal penalties for a violation of the statute, is merely a portion of a comprehensive act to regulate the manufacture, sale and distribution of alcoholic beverages and, therefore, not a basis for negligence per se.

Does the majority suggest that such is true of all similar acts passed by the legislature or is it limited only to this act? Consider Chapter 8, "Automobiles and Other Vehicles," which is a comprehensive act to regulate the licensing, sale and use of automobiles. Is not the same true of Chapter 8 as is true of Chapter 41, that while it contains certain provisions for licensing, other sections provide criminal sanctions for violation of those sections? The majority would imply that an individual who, while driving an automobile, intentionally and illegally proceeded into a controlled intersection and struck another vehicle is not required to bear the responsibility for any damage caused.

The legislature did not create a civil cause of action in favor of those injured as a result of a violation of the traffic laws. Does this legislative silence mean that the legislature did not intend for such violations of the traffic laws to be interpreted to impose civil liability, that a violation of the traffic laws is not negligence per se because the legislature remained silent? Rarely does the legislature specifically create a civil cause of action in favor of those injured as a result of a violation of a law.

K.S.A. 41-715 is not a licensing statute enacted by the legislature to regulate who may sell liquor. Chapter 41 of the statutes, [646] which is entitled "Intoxicating Liquors and Beverages," contains several sections which regulate the issuance of a license. K.S.A. 41-715, however, does not appear in a licensing article of Chapter 41. It appears in Article 7, which is entitled "Certain Prohibited Acts and Penalties." A violator of 41-715 may, in addition to receiving a fine not to exceed $200.00, receive a sentence not to exceed 30 days or both a fine and imprisonment in the discretion of the court. Any person violating 41-715 is deemed guilty of a misdemeanor by the statute.

The majority is either failing to overrule prior case law or ignoring it. In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), this court determined that for public safety reasons, K.S.A. 21-4209 prohibits minors, habitual drunkards, narcotics addicts and felons from obtaining explosives or detonating substances. It was the public policy of the act that the party whose conduct violates the act must bear the responsibility for the damage caused. The defendant, in violation of the statute, sold gunpowder to a sixteen-year-old boy who used the gunpowder to reload some shells. The boy was injured when his shotgun misfired. The minor predicated his successful action against the seller of the gunpowder upon the theory that actionable negligence occurs when one breaches a duty imposed by a criminal statute and the breach results in an injury of the type intended to be prevented.

K.S.A. 41-715 forbids the sale of alcoholic liquor to a minor, any person who is incapacitated or any person who is physically or mentally incapacitated by the consumption of liquor. The statute establishes a criminal penalty for such sales. The purpose of 41-715 is to prevent the sale of alcoholic beverages to those individuals who are unlikely to be able to handle alcohol. These individuals not only need protection from their own acts, but society needs protection from them.

Are we required to take legislative silence as to civil liability for alcohol vendors who violate a statute as an expression of legislative intent? Why has the majority suddenly determined that legislative silence is action? Prior to the legislature's repeal of the dram shop act in G.S. 1949, 41-1106, the legislature knew that this court had stated that where there is a breach of a duty imposed by law and injury occurs as a result of the breach, the injured party is entitled to compensation. If the legislature [647] wishes to exempt a specific class of violators from liability for damages which they cause by their negligence, then the legislature should speak. The court should not legislate an exemption. There is no more persuasive evidence of the legislature's intention than a statute undertaken by the legislature to give expression to that intention. Where legislative enactments in the past have contained no express provision that their violation shall result in tort liability, and no implication to that effect, this court has adopted the requirements of that enactment as a standard of conduct necessary to protect certain individuals or society as a whole.

Section 18 of the Bill of Rights of the Constitution of the State of Kansas provides that all persons who suffer injuries to their person, reputation or property have a remedy by due course of law. In addition to our constitution, the legislature is aware of the principle of negligence law that every person is under a duty to avoid creating situations which impose an unreasonable risk of harm to others. Many times we have stated that a breach of a duty imposed by law or ordinance constitutes negligence per se and where injury occurs as a result of the breach, the injured party is entitled to compensation. Cognizant of our past actions, the legislature may well consider that when a judge-made common-law rule has become obsolete, anachronistic and oppressive, the court is responsible for change.

The majority states that the issue presented is whether this court should judicially enact a "dram shop" law imposing civil liability upon liquor vendors who violate 41-715. The real issue is whether this court should follow our previous case law which determined that public policy requires, where a party's conduct violates a penal statute, that party must bear the responsibility for the damage caused as a result of the violation.

A statute is an expression of policy arising out of specific situations and addressed to the attainment of a particular aim of the legislature. The majority should not rewrite the statute. It should neither enlarge it nor contract it. The majority should take the statute as it finds it. This it has failed to do.

PRAGER and MILLER, JJ., join in the foregoing concurring and dissenting opinion.

[648] APPENDIX

  Following is a brief summary of the present status of the civilliability of liquor vendors in all jurisdictions.1. ALABAMA Dram shop act (Ala. Code § 6-5-71 [1975]). No    common-law vendor liability. DeLoach v. Mayer Elec. Supply    Co., 378 So.2d 733 (Ala. 1979).2. ALASKA No statutory vendor liability. Common-law liability.    Nazareno v. Urie, 638 P.2d 671 (Alaska 1981); and Morris v.    Farley Enterprises, Inc., 661 P.2d 167 (Alaska 1983).3. ARIZONA No statutory vendor liability. Common-law    liability. Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200    (1983); and Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d    213 (1983), overruling earlier Arizona cases adhering to    nonliability rule.4. ARKANSAS No statutory vendor liability. No common-law    liability. Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656    (1965).5. CALIFORNIA Prevailing common-law vendor liability for    injury or damage resulting from intoxication abrogated in    1978 by Cal. Bus. & Prof. Code § 25602 (West 1985 Supp.) and    Cal. Civ. Code § 1714 (West 1985).6. COLORADO No statutory vendor liability. Common-law    liability. Kerby v. Flamingo Club, 35 Colo. App. 127, 532    P.2d 975 (1974).7. CONNECTICUT Dram shop act (Conn. Gen. Stat. § 30-102    [1985]). No common-law vendor liability. Nelson v. Steffens,    170 Conn. 356, 365 A.2d 1174 (1976); and Slicer v. Quigley,    180 Conn. 252, 429 A.2d 855 (1980).8. DELAWARE No statutory vendor liability. No common-law    liability. Wright v. Moffitt, 437 A.2d 554 (Del. 1981).9. DISTRICT OF COLUMBIA No statutory vendor liability.    Common-law liability. Marusa v. District of Columbia, 484    F.2d 828 (D.C. Cir.1973).10. FLORIDA Prevailing common-law vendor liability for injury    or damage resulting from intoxication. Davis v.    Shiappacossee, 155 So.2d 780 (Fla. 1963); and Prevatt v.    McClennan, 201 So.2d 780 (Fla. Dist. App. 1967), limited in    1981 by Fla. Stat. § 768.125 (1983).11. GEORGIA Dram shop act (Ga. Code § 3-3-22 [1982]). No    common-law liability. Keaton v. Kroger Co., 143 Ga. App. 23,    237 S.E.2d 443 (1977). [649] 12. HAWAII No statutory vendor liability. Common-law liability.    Ono v. Applegate, 62 Hawaii 131, 612 P.2d 533 (1980).13. IDAHO No statutory vendor liability. Common-law liability.    Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980),    overruling earlier Idaho case adhering to nonliability rule.14. ILLINOIS Dram shop act (Ill. Stat. Ann. ch. 43, ¶ 135    [Smith-Hurd 1984 Supp.]). No common-law vendor liability.    Demchuk v. Duplancich, 92 Ill.2d 1, 440 N.E.2d 112 (1982);    and Thompson v. Trickle, 114 Ill. App.3d 930, 449 N.E.2d 910    (1983).15. INDIANA No statutory vendor liability. Common-law    liability. Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847    (1966).16. IOWA Dram shop act (Iowa Code Ann. § 123.92 [West 1984    Supp.]). Common-law vendor liability. Haafke v. Mitchell,    347 N.W.2d 381 (Iowa 1984).17. KANSAS No statutory vendor liability. No common-law    liability.18. KENTUCKY No statutory vendor liability. Common-law    liability. Pike v. George, 434 S.W.2d 626 (Ky. 1968).19. LOUISIANA No statutory vendor liability. Common-law    liability. Thrasher v. Leggett, 373 So.2d 494 (La. 1979).20. MAINE Dram shop act (Me. Rev. Stat. Ann. tit. 17, § 2002    [1983]). Status of common-law liability not confirmed.21. MARYLAND No statutory vendor liability. No common-law    liability. Felder v. Butler, 292 Md. 174, 438 A.2d 494    (1981); and Fisher v. O'Connor's, Inc., 53 Md. App. 338, 452    A.2d 1313 (1982).22. MASSACHUSETTS No statutory vendor liability. Common-law    liability. Adamian v. Three Sons, Inc., 353 Mass. 498, 233    N.E.2d 18 (1968); and Michnik-Zilberman v. Gordon's Liquor,    Inc., 390 Mass. 6, 453 N.E.2d 430 (1983).23. MICHIGAN Dram shop act (Mich. Stat. Ann. § 18.993    [Challaghan 1984 Supp.]). Common-law vendor liability. Thaut    v. Finley, 50 Mich. App. 611, 213 N.W.2d 820 (1973).24. MINNESOTA Dram shop act (Minn. Stat. § 340.95 [1984]).    Common-law liability. Trial v. Christian, 298 Minn. 101, 213    N.W.2d 618 (1973). Recently, Minnesota Supreme Court refused    to extend liability to a social host. Holmquist v. Miller,    No. C7-83-1919 (5/3/85).25. MISSISSIPPI No statutory vendor liability. Common-law [650]     liability. Munford, Inc. v. Peterson, 368 So.2d 213 (Miss.    1979).26. MISSOURI No statutory vendor liability. Common-law    liability. Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333    (Mo. App. 1980); and Carver v. Schafer, 647 S.W.2d 570 (Mo.    App. 1983).27. MONTANA No statutory vendor liability. No common-law    liability. Runge v. Watts, 180 Mont. 91, 589 P.2d 145    (1979); Folda v. City of Bozeman, 177 Mont. 537, 582 P.2d    767 (1978); and Swartzenberger v. Billings Labor Temple    Assn., 179 Mont. 145, 586 P.2d 712 (1978). But see Deeds v.    United States, 306 F. Supp. 348 (D. Mont. 1969).28. NEBRASKA No statutory vendor liability. No common-law    liability. Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65    (1976).29. NEVADA No statutory vendor liability. No common-law    liability. Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450    P.2d 358 (1969).30. NEW HAMPSHIRE No statutory vendor liability. Common-law    liability. Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900    (1965).31. NEW JERSEY No statutory vendor liability. Common-law    liability established in Rappaport v. Nichols, 31 N.J. 188,    156 A.2d 1 (1959), recently extended to social hosts, Kelly    v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984).32. NEW MEXICO No statutory vendor liability. Common-law    liability. Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982);    MRC Properties, Inc. v. Gries, 98 N.M. 710, 652 P.2d 732    (1982); and Porter v. Ortiz, 100 N.M. 58, 665 P.2d 1149 (Ct.    App. 1983), overruling earlier New Mexico cases adhering to    nonliability rule.33. NEW YORK Dram shop act (N.Y. Gen. Oblig. Law § 11-101    [McKinney 1984 Supp.]). Common-law liability. Berkeley v.    Park, 47 Misc.2d 381, 262 N.Y.S.2d 290 (1965).34. NORTH CAROLINA Dram shop act (N.C. Gen. Stat. § 18B-121 et    seq. [1983]). Common-law liability. Hutchens v. Hankins, 63    N.C. App. 1, 303 S.E.2d 584, rev. denied, 309 N.C. 191    (1983).35. NORTH DAKOTA Dram shop act (N.D. Cent. Code § 5-01-06 [1983    Supp.]). No common-law liability. Thoring v. Bottonsek, 350    N.W.2d 586 (N.D. 1984). [651] 36. OHIO Dram shop act (Ohio Rev. Code Ann. § 4399.01 [Page    1982]). Common-law vendor liability. Mason v. Roberts, 33    Ohio St.2d 29, 294 N.E.2d 884 (1973).37. OKLAHOMA Has not ruled on subject.38. OREGON Prevailing common-law vendor liability. Campbell v.    Carpenter, 279 Or. 237, 566 P.2d 893 (1977) limited in 1979    by Or. Rev. Stat. § 30.950 et seq. (1983).39. PENNSYLVANIA No statutory vendor liability. Common-law    liability. Jardine v. Upper Darby Lodge No. 1973, 413 Pa.    626, 198 A.2d 550 (1964).40. RHODE ISLAND Dram shop act (R.I. Gen. Laws § 3-11-1    [1976]). Status of common-law not confirmed.41. SOUTH CAROLINA Has not ruled on subject.42. SOUTH DAKOTA No statutory vendor liability. Common-law    liability. Walz v. City of Hudson, 327 N.W.2d 120 (S.D.    1982), overruling earlier South Dakota case adhering to    nonliability rule.43. TENNESSEE No statutory vendor liability. Common-law    liability. Mitchell v. Ketner, 54 Tenn. App. 656, 393 S.W.2d    755 (1964).44. TEXAS Has not ruled on subject.45. UTAH Dram shop act (Utah Code Ann. § 32-11-1 [1983 Supp.]).    Status of common-law liability not confirmed.46. VERMONT Has not ruled on subject.47. VIRGINIA Has not ruled on subject.48. WASHINGTON No statutory vendor liability. Common-law    liability. See, e.g., Callan v. O'Neil, 20 Wash. App. 32,    578 P.2d 890 (1978); and Halligan v. Pupo, 37 Wash. App. 84,    678 P.2d 1295 (1984).49. WISCONSIN No statutory vendor liability. Common-law    liability. Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d    108 (1984), overruling earlier Wisconsin cases adhering to    non-liability rule. Koback v. Crook, 123 Wis.2d ___, 366    N.W.2d 857 (1985), Wisconsin Supreme Court imposes liability    on social host who served liquor to a minor.50. WEST VIRGINIA Has not ruled on subject.51. WYOMING No statutory vendor liability. Common-law    liability. McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.    1983), overruling earlier Wyoming cases adhering to    nonliability rule.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.

[146] Messrs. Stanley M. Burns and George T. Hughes, with whom Mr. Wm. E. Leahy was on the brief, for petitioner.

[147] Mr. Robert W. Upton, with whom Mr. John E. Benton was on the brief, for respondent.

[150] MR. JUSTICE BRANDEIS delivered the opinion of the Court.

This action for damages was brought in a court of New Hampshire under the employers' liability provisions of the Employers' Liability and Workmen's Compensation Act of that State, N.H. Public Laws, 1926, c. 302, to recover for the death of Leon J. Clapper, which the plaintiff claimed was due to his employer's negligence. The case [151] was removed to the federal court on the ground of diversity of citizenship; the defendant, Bradford Electric Light Co., Inc., being a citizen and resident of Vermont and the plaintiff, Jennie M. Clapper, administratrix, being a citizen and resident of New Hampshire. It appeared that the Company had its principal place of business in Vermont and lines extending into New Hampshire; that Leon Clapper, a resident of Vermont, was employed by it there as a lineman for emergency service in either State; and that in the course of his duties, he was sent to restore some burned-out fuses at a substation in New Hampshire and while doing so was killed. The Company, invoking the full faith and credit clause of the Federal Constitution, set up as a special defense that the action was barred by provisions of the Vermont Compensation Act; that the contract of employment had been entered into in Vermont, where both parties to it then, and at all times thereafter resided; and that the Vermont Act had been accepted by both employer and employee as a term of the contract.

The District Court ruled that the action was properly brought under the laws of the State of New Hampshire; that the action was based on a tort occurring in that State; and that the Vermont Workmen's Compensation Act had no extra-territorial effect. Accordingly, that court rejected the special defense and denied a motion to dismiss. The case was tried three times before a jury, the third trial resulting in a verdict for the plaintiff in the sum of $4,000. The judgment entered thereon was first reversed by the Circuit Court of Appeals. But upon a rehearing, the judgment of the trial court was affirmed, one judge dissenting. 51 F. (2d) 992, 999. The Company filed in this Court both an appeal and a petition for writ of certiorari. The appeal was denied, and certiorari granted. 284 U.S. 221.

[152] The Vermont Workmen's Compensation Act provides that a workman hired within the State shall be entitled to compensation even though the injury was received outside the State, Vermont General Laws, c. 241, § 5770; that "employers who hire workmen within this state to work outside of the state, may agree with such workmen that the remedies under the provisions of this chapter shall be exclusive as regards injuries received outside this state by accident arising out of and in the course of such employment, and all contracts of hiring in this state shall be presumed to include such an agreement," § 5774; that every contract of employment made within the State shall be presumed to have been made subject to its provisions, unless prior to the accident an express statement to the contrary shall have been made, in writing, by one of the parties, § 5765; and that acceptance of the Act is "a surrender by the parties . . . of their rights to any other method, form or amount of compensation or determination thereof," § 5763. Neither the Company nor Leon Clapper filed a statement declining to accept any provision of the Vermont Act.

The New Hampshire Employers' Liability and Workmen's Compensation Act provides that the employer shall become subject to the workmen's compensation provisions of the Act only by filing a declaration to that effect, N.H. Public Laws, c. 178, § 4; and that even if the declaration is filed, the employee may, subsequent to the injury, still elect either to claim compensation, § 11, or to sue for damages at common law as modified by the employers' liability provisions of the Act. Failure to file such a declaration exposes the employer to a common law action of negligence in which the defenses of assumption of risk and injury by a fellow servant may not be interposed. §§ 2, 3. The Company filed in New Hampshire the declaration provided for by its statute.

[153] Thus each State has a workmen's compensation law of the elective type; but their provisions differ sharply. The New Hampshire statute, unlike that of Vermont, permits the employee or his representative to elect, after the injury, to sue for damages as at common law; and it was as a result of such an election made by the administratrix that the case at bar arose. The main question for decision is whether the existence of a right of action for Leon Clapper's death should be determined by the laws of Vermont, where both parties to the contract of employment resided and where the contract was made, or by the laws of New Hampshire, where the employee was killed.

First. It clearly was the purpose of the Vermont Act to preclude any recovery by proceedings brought in another State for injuries received in the course of a Vermont employment. The provisions of the Act leave no room for construction.^[1] The statute declares in terms that when a workman is hired within the State, he shall be entitled to compensation thereunder for injuries received outside, as well as inside, the State, unless one of the parties elects to reject the provisions of the Act. And it declares further that for injuries wherever received the remedy under the statute shall exclude all other rights and remedies of the employee or his personal representative. If the accident [154] had happened in Vermont, the statute plainly would have precluded the bringing of an action for damages in New Hampshire under its employers' liability act.^[2] For such action is predicated on a tort; and in Vermont an injury resulting from the employer's negligence is not a tort, if the provisions of the Compensation Act have been accepted. The question is whether the fact that the injury occurred in New Hampshire leaves its courts free to subject the employer to liability as for a tort. That is, may the New Hampshire courts disregard the relative rights of the parties as determined by the laws of Vermont where they resided and made the contract of employment; or must they give effect to the Vermont Act, and to the agreement implied therefrom, that the only right of the employee against the employer, in case of injury, shall be the claim for compensation provided by the statute?

Second. If the conflict presented were between the laws of a foreign country and those of New Hampshire, its courts would be free, so far as the restrictions of federal law are concerned, to attach legal consequences to acts done within the State, without reference to the undertaking of the parties, entered into at their common residence abroad, that such consequences should not be enforced between them. But the conflict here is between the laws of two States; and the Company in setting up as a defense a right arising under the Vermont statute, invokes Art. IV, § 1, of the Federal Constitution, which declares that "full faith and credit shall be given in each State to the public acts . . . of every other State." That a statute [155] is a "public act" within the meaning of that clause is settled. Modern Woodmen of America v. Mixer, 267 U.S. 544, 550, 551; Aetna Life Ins. Co. v. Dunken, 266 U.S. 389, 393. See Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 360; Chicago & Alton R. Co. v. Wiggins Ferry Co., 119 U.S. 615, 622.^[3] A federal court sitting in New Hampshire is bound equally with courts of the State to observe the command of the full faith and credit clause, where applicable.^[4] The precise question for decision is whether that clause is applicable to the situation here presented.

Third. The administratrix contends that the full faith and credit clause is not applicable. The argument is that to recognize the Vermont Act as a defense to the New Hampshire action would be to give to that statute an [156] extra-territorial effect, whereas a State's power to legislate is limited to its own territory. It is true that full faith and credit is enjoined by the Constitution only in respect to those public acts which are within the legislative jurisdiction of the enacting State. See National Mutual Bldg. & Loan Assn. v. Brahan, 193 U.S. 635, 647; Olmsted v. Olmsted, 216 U.S. 386, 395.^[5] But, obviously, the power of Vermont to effect legal consequences by legislation is not limited strictly to occurrences within its boundaries. It has power through its own tribunals to grant compensation to local employees, locally employed, for injuries received outside its borders, compare Quong Ham Wah Co. v. Industrial Accident Comm., 255 U.S. 445, dismissing writ of error, 184 Cal. 26; 192 Pac. 1021, and likewise has power to exclude from its own courts proceedings for any other form of relief for such injuries.^[6] [157] The existence of this power is not denied. It is contended only that the rights thus created need not be recognized in an action brought in another State; that a provision which Vermont may validly enforce in its own courts need not be given effect when the same facts are presented for adjudication in New Hampshire.

The answer is that such recognition in New Hampshire of the rights created by the Vermont Act, can not, in any proper sense, be termed an extra-territorial application of that Act.^[7] Workmen's compensation acts are [158] treated, almost universally, as creating a statutory relation between the parties — not, like employer's liability acts, as substituting a statutory tort for a common law tort. See Cudahy Packing Co. v. Parramore, 263 U.S. 418, 423; Mulhall v. Nashua Mfg. Co., 80 N.H. 194, 197; 115 Atl. 449; Matter of Cameron v. Ellis Construction Co., 252 N.Y. 394, 396; 169 N.E. 622; Chandler v. Industrial Commission, 55 Utah 213, 217; 184 Pac. 1020; Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 113, 117, 118; 170 N.W. 275; 171 N.W. 935. The relation between Leon Clapper and the Company was created by the law of Vermont; and as long as that relation persisted its incidents were properly subject to regulation there. For both Clapper and the Company were at all times residents of Vermont; the Company's principal place of business was located there; the contract of employment was made there; and the employee's duties required him to go into New Hampshire only for temporary and specific purposes, in response to orders given him at the Vermont office. The mere recognition by the courts of one State that parties by their conduct have subjected themselves to certain obligations arising under the law of another State is not to be deemed an extra-territorial application of the law of the State creating the obligation.^[8] Compare [159] Canada Southern Ry. Co. v. Gebhard, 109 U.S. 527, 536, 537.

By requiring that, under the circumstances here presented, full faith and credit be given to the public act of Vermont, the Federal Constitution prevents the employee or his representative from asserting in New Hampshire rights which would be denied him in the State of his residence and employment. A Vermont court could have enjoined Leon Clapper from suing the Company in New Hampshire, to recover damages for an injury suffered there, just as it would have denied him the right to recover such damages in Vermont. Compare Cole v. Cunningham, 133 U.S. 107; Reynolds v. Adden, 136 U.S. 348, 353. The rights created by the Vermont Act are entitled to like protection when set up in New Hampshire by way of defense to the action brought there. If this were not so, and the employee or his representative were free to disregard the law of Vermont and his contract, the effectiveness of the Vermont Act would be gravely impaired. For the purpose of that Act, as of the workmen's compensation laws of most other States, is to provide, in respect to persons residing and businesses located in the State, not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate. Compare New York Central R. Co. v. White, 243 U.S. 188; Hawkins v. Bleakly, 243 U.S. 210; Mountain Timber Co. v. Washington, 243 U.S. 219.

Fourth. It is urged that the provision of the Vermont statute which forbids resort to common law remedies for injuries incurred in the course of employment is contrary to the public policy of New Hampshire; that the full faith and credit clause does not require New Hampshire to enforce an act of another State which is obnoxious to its public policy; and that a federal court sitting in that State may, therefore, decline to do so. Compare Union [160] Trust Co. v. Grosman, 245 U.S. 412. It is true that the full faith and credit clause does not require the enforcement of every right conferred by a statute of another State. There is room for some play of conflicting policies. Thus, a plaintiff suing in New Hampshire on a statutory cause of action arising in Vermont might be denied relief because the forum fails to provide a court with jurisdiction of the controversy; see Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148, 149; compare Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377; or because it fails to provide procedure appropriate to its determination, see Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 359; compare Slater v. Mexican National R. Co., 194 U.S. 120, 128, 129; or because the enforcement of the right conferred would be obnoxious to the public policy of the forum, compare Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 277-279; Union Trust Co. v. Grosman, 245 U.S. 412; Bond v. Hume, 243 U.S. 15, 25; Converse v. Hamilton, 224 U.S. 243, 260, 261; or because the liability imposed is deemed a penal one, see Galveston, H. & S.A. Ry. Co. v. Wallace, 223 U.S. 481, 490, compare Stewart v. Baltimore & Ohio R. Co., 168 U.S. 445, 448. But the Company is in a position different from that of a plaintiff who seeks to enforce a cause of action conferred by the laws of another State. The right which it claims should be given effect is set up by way of defense to an asserted liability; and to a defense different considerations apply. Compare Home Ins. Co. v. Dick, 281 U.S. 397, 407, 408. A State may, on occasion, decline to enforce a foreign cause of action. In so doing, it merely denies a remedy, leaving unimpaired the plaintiff's substantive right, so that he is free to enforce it elsewhere. But to refuse to give effect to a substantive defense under the applicable law of another State, as under the circumstances here presented, subjects the defendant to irremediable liability. This may not be done. Compare Modern Woodmen [161] of America v. Mixer, 267 U.S. 544, 550, 551; Aetna Life Ins. Co. v. Dunken, 266 U.S. 389; Royal Arcanum v. Green, 237 U.S. 531. See also Western Union Telegraph Co. v. Brown, 234 U.S. 542; Atchison, T. & S.F. Ry. Co. v. Sowers, 213 U.S. 55, 69.

Moreover, there is no adequate basis for the lower court's conclusion that to deny recovery would be obnoxious to the public policy of New Hampshire. No decision of the state court has been cited indicating that recognition of the Vermont statute would be regarded in New Hampshire as prejudicial to the interests of its citizens.^[9] In support of the contention that the provision of the Vermont Act is contrary to the New Hampshire policy, it is urged that New Hampshire's compensation law is unique among workmen's compensation acts in that it permits the injured employee to elect, subsequent to injury, whether to bring a suit based upon negligence or to avail himself of the remedy provided by the Act; and that the legislature of New Hampshire has steadily refused to withdraw this privilege.^[10] But the mere fact that the Vermont legislation does not conform to that of New [162] Hampshire does not establish that it would be obnoxious to the latter's public policy to give effect to the Vermont statute in cases involving only the rights of residents of that State incident to the relation of employer and employee created there. Northern Pacific R. Co. v. Babcock, 154 U.S. 190, 198. Nor does sufficient reason appear why it should be so regarded. The interest of New Hampshire was only casual. Leon Clapper was not a resident there. He was not continuously employed there. So far as appears, he had no dependent there. It is difficult to see how the State's interest would be subserved, under such circumstances, by burdening its courts with this litigation.

Sixth. The administratrix urges that the Company had in fact accepted the provision of the New Hampshire Compensation Act, which reserves to the employee the right to elect to sue for damages as at common law. It was upon this ground, primarily, that the Circuit Court of Appeals based, upon the rehearing, the affirmance of the judgment of the District Court. The circumstances under which the acceptance of the New Hampshire Act was filed show that the Company did not intend thereby to abandon its rights under the Vermont law in respect to Leon Clapper or other employees similarly situated. It had had occasion to hire in New Hampshire residents of that State for employment there in connection with the operation of its lines in that State. In case of injury of such employees, failure to accept the New Hampshire Act would have made the petitioner liable to an action for negligence in which it would have been denied the defenses of assumption of risk and injury by a fellow servant. Jutras v. Amoskeag Mfg. Co., 84 N.H. 171, 173; 147 Atl. 753; Levesque v. American Box & Lumber Co., 84 N.H. 543; 153 Atl. 10. Its acceptance is to be construed as referable only to such New Hampshire employees, [163] and not as bringing under the New Hampshire Act employees not otherwise subject to it.

We are of opinion that the rights as between the Company and Leon Clapper or his representative are to be determined according to the Vermont Act. The judgment of the Circuit Court of Appeals must accordingly be reversed. We have no occasion to consider whether if the injured employee had been a resident of New Hampshire, or had been continuously employed there, or had left dependents there, recovery might validly have been permitted under New Hampshire law.

Reversed.

MR. JUSTICE CARDOZO took no part in the consideration or decision of this case.

MR. JUSTICE STONE, concurring.

I agree that in the circumstances of the present case, the courts of New Hampshire, in giving effect to the public policy of that state, would be at liberty to apply the Vermont statute and thus, by comity, make it the applicable law of New Hampshire. In the absence of any controlling decision of the New Hampshire courts, I assume, as does the opinion of the Court, that they would do so and that what they would do we should do. Hence, it seems unnecessary to decide whether that result could be compelled, against the will of New Hampshire, by the superior force of the full faith and credit clause.

If decision of that question could not be avoided, I should hesitate to say that the Constitution projects the authority of the Vermont statute across state lines into New Hampshire, so that the New Hampshire courts, in fixing the liability of the employer for a tortious act committed within the state, are compelled to apply Vermont law instead of their own. The full faith and credit clause [164] has not hitherto been thought to do more than compel recognition, outside the state, of the operation and effect of its laws upon persons and events within it. Bonaparte v. Tax Court, 104 U.S. 592; Atchison, T. & S.F. Ry. Co. v. Sowers, 213 U.S. 55; Olmsted v. Olmsted, 216 U.S. 386; Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354; Hood v. McGehee, 237 U.S. 611; see Union Trust Co. v. Grosman, 245 U.S. 412, 415, 416; Western Union Telegraph Co. v. Brown, 234 U.S. 542, 547.

It is true that in this case the status of employer and employe, terminable at will, was created by Vermont laws operating upon them while they were within that state. I assume that the fact of its creation there must be recognized elsewhere, whenever material. But I am not prepared to say that that status, voluntarily continued by employer and employe and given a locus in New Hampshire by their presence within the state, may not be regulated there according to New Hampshire law, or that the legal consequences of acts of the employer or employe there, which grow out of or affect the status in New Hampshire, must, by mandate of the Constitution, be either defined or controlled, in the New Hampshire courts, by the laws of Vermont rather than of New Hampshire.

The interest, which New Hampshire has, in exercising that control, derived from the presence of employer and employe within its borders, and the commission of the tortious act there, is at least as valid as that of Vermont, derived from the fact that the status is that of its citizens, and originated when they were in Vermont, before going to New Hampshire. I can find nothing in the history of the full faith and credit clause, or the decisions under it, which lends support to the view that it compels any state to subordinate its domestic policy, with respect to persons and their acts within its borders, to the laws of any other. On the contrary, I think it should be interpreted as leaving the courts of New Hampshire free, in [165] the circumstances now presented, either to apply or refuse to apply the law of Vermont, in accordance with their own interpretation of New Hampshire policy and law.

[1] "Right to Compensation Exclusive: The rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter, shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury. Employers who hire workmen within this state to work outside of the state, may agree with such workmen that the remedies under the provisions of this chapter shall be exclusive as regards injuries received outside this state by accident arising out of and in the course of such employment, and all contracts of hiring in this state shall be presumed to include such an agreement." Vt. Gen. Laws, [1917] c. 241, § 5774.

[2] Compare Home Ins. Co. v. Dick, 281 U.S. 397. No question is here raised of the character of that considered in Atchison, T. & S.F. Ry. Co. v. Sowers, 213 U.S. 55; and Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, of the validity of an attempt to create a statutory cause of action and confine it to the courts of the enacting State.

[3] See also Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 279; Pennsylvania Fire Ins. Co. v. Gold Issue Mining & M. Co., 243 U.S. 93, 96; Western Life Indemnity Co. v. Rupp, 235 U.S. 261, 274, 275; Texas & New Orleans R. Co. v. Miller, 221 U.S. 408, 416; Louisville & Nashville R. Co. v. Melton, 218 U.S. 36, 50-52; El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U.S. 87, 92, 93; Smithsonian Institute v. St. John, 214 U.S. 19, 28; Allen v. Alleghany Co., 196 U.S. 458, 464, 465; Finney v. Guy, 189 U.S. 335, 340; Johnson v. New York Life Ins. Co., 187 U.S. 491, 496; Eastern Bldg. & Loan Assn. v. Ebaugh, 185 U.S. 114, 121; Banholzer v. New York Life Ins. Co., 178 U.S. 402, 405, 406; Lloyd v. Matthews, 155 U.S. 222, 227, 228; Glenn v. Garth, 147 U.S. 360, 367, 369. Compare Royal Arcanum v. Green, 237 U.S. 531, 544, 545; Converse v. Hamilton, 224 U.S. 243, 260, 261; Hancock National Bank v. Farnum, 176 U.S. 640; Crapo v. Kelley, 16 Wall. 610; Green v. Van Buskirk, 5 Wall. 307. See 2 Farrand, "Records of the Federal Convention," pp. 188, 447, 577. Congress, acting under the authority of Article IV, § 1, has provided for the authentication of "acts of the legislature of any state or territory or of any country subject to the jurisdiction of the United States." Act of May 26, 1790, c. 11; Act of March 27, 1804, c. 56, § 2; Rev. Stat. § 905, U.S. Code, Tit. 28, § 687.

[4] Compare Mills v. Duryee, 7 Cranch 481; Rev. Stat. §§ 905, 906. See also Minnesota v. Northern Securities Co., 194 U.S. 48, 72; Cooper v. Newell, 173 U.S. 555, 567.

[5] See also New York Life Ins. Co. v. Head, 234 U.S. 149, 161; Bonaparte v. Tax Court, 104 U.S. 592, 594. Compare Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55, 70; Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 360.

[6] For decisions construing state workmen's compensation acts as applicable, under appropriate circumstances, to injuries received outside the State, and upholding the validity of the acts as so construed, see Quong Ham Wah Co. v. Industrial Accident Comm., 184 Cal. 26, 36; 192 Pac. 1021; Industrial Commission v. Aetna Life Ins. Co., 64 Colo. 480, 490; 174 Pac. 589; Kennerson v. Thames Towboat Co., 89 Conn. 367, 375; 94 Atl. 372; Metropolitan Casualty Ins. Co. v. Huhn, 165 Ga. 667, 670; 142 S.E. 121; Beall Bros. Supply Co. v. Industrial Comm., 341 Ill. 193, 199; 173 N.E. 64; Pierce v. Bekins Van & Storage Co., 185 Iowa 1346, 1356; 172 N.W. 191; Saunder's Case, 126 Me. 144, 146; 136 Atl. 722; Pederzoli's Case, 269 Mass. 550, 553; 169 N.E. 427; Crane v. Leonard, Crossette & Riley, 214 Mich. 218, 231; 183 N.W. 204; State ex rel. Chambers v. District Court, 139 Minn. 205, 208, 209; 166 N.W. 185; State ex rel. Loney v. Industrial Accident Board, 87 Mont. 191, 195, 196; 286 Pac. 408; McGuire v. Phelan-Shirley Co., 111 Neb. 609, 611, 612; 196 N.W. 615; Rounsaville v. Central R. Co., 87 N.J. Law 371, 374; 94 Atl. 392; Post v. Burger & Gohlke, 216 N.Y. 544, 549; 111 N.E. 351; (compare Smith v. Heine Safety Boiler Co., 224 N.Y. 9, 11, 12; 119 N.E. 878; Cameron v. Ellis Construction Co., 252 N.Y. 394, 397; 169 N.E. 622); Grinnell v. Wilkinson, 39 R.I. 447, 462, 463; 98 Atl. 103; Smith v. Van Noy Interstate Co., 150 Tenn. 25, 36; 26 S.W. 104; Texas Employers' Ins. Assn. v. Volek, 44 S.W. (2d) 795, 798 (Tex. Civ. App.); Pickering v. Industrial Comm., 59 Utah 35, 38; 201 Pac. 1029; Gooding v. Ott, 77 W. Va. 487, 492, 493; 87 S.E. 862; Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 114, 115; 170 N.W. 275; 171 N.W. 935. A contrary construction was reached in Altman v. North Dakota Workmen's Compensation Bureau, 50 N.D. 215; 195 N.W. 287; Sheehan Pipe Line Const. Co. v. State Industrial Comm., 151 Okla. 272, 273; 3 P. (2d) 199. Early decisions to like effect, in California, Illinois, and Massachusetts, have been superseded by statute. See North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1; 162 Pac. 93; Union Bridge & Construction Co. v. Industrial Comm., 287 Ill. 396, 398; 122 N.E. 609; Gould's Case, 215 Mass. 480; 102 N.E. 693. The provisions of the state statutes in respect to injuries occurring outside the state are summarized in Schneider, "The Law of Workmen's Compensation" (2d ed. 1932), vol. I, pp. 428-433.

[7] The statute does not undertake to prohibit acts beyond the borders of the State. Compare Allgeyer v. Louisiana, 165 U.S. 578; Nutting v. Massachusetts, 183 U.S. 553, 557. It does not attempt to forbid or regulate subsequent modification of the Vermont contract, or the formation of subsidiary contracts, or new agreements, by the parties in other States. Compare New York Life Ins. Co. v. Head, 234 U.S. 149; New York Life Ins. Co. v. Dodge, 246 U.S. 357. It affects only the rights and liabilities of parties who by their conduct within the State have subjected themselves to its operation. As to those parties, its effect is not to create a liability for acts without the State, compare Western Union Telegraph Co. v. Brown, 234 U.S. 542, but to give rise to a defense in consequence of acts within.

[8] See Barnhart v. American Concrete Steel Co., 227 N.Y. 531, 535; 125 N.E. 675, denying recovery in a common law action for damages in the state of injury, on the ground that the employee's remedy was for compensation under the law of the state of employment. Compare In re Spencer Kellogg & Sons, 52 F. (2d) 129, 134, reversed on other grounds, 285 U.S. 502. Compensation was similarly denied in Hall v. Industrial Comm., 77 Colo. 338, 339; 235 Pac. 1073; Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 464; 121 Atl. 828; Proper v. Polley, 233 N.Y. App. Div. 621; 253 N.Y.S. 530. Compare Scott v. White Eagle Oil & Rfg. Co., 47 F. (2d) 615, 616. See also Darsch v. Thearle Diffield Fire Works Display Co., 77 Ind. App. 357; 133 N.E. 525. Compare Wiley v. Grand Trunk Ry. of Canada, 227 Fed. 127, 130; Mexican Nat. R. Co. v. Jackson, 118 Fed. 549, 552.

[9] Compare Saloshin v. Houle, 155 Atl. 47, an action of negligence by the widow of a New York resident killed in New Hampshire while working for a New York firm, brought against a third person residing in New Hampshire. The Supreme Court of New Hampshire held that the widow's right of action was barred by her acceptance, of compensation under the New York Act, and that the acceptance, in accordance with the provisions of that Act, operated as an assignment to the compensation insurer of her rights against the defendant.

[10] Attention is called to the following rejected compensation bills abolishing the right of election after accident: 1915 Session, House Bills No. 206, 302, Journal, pp. 720, 1021; 1917 Session, House Bills No. 319, 485, Journal, pp. 567, 568; 1919 Session, House Bill No. 134, Journal, p. 437; 1927 Session, House Bill No. 212, Journal, p. 752; 1929 Session, House Bill No. 292, Journal, p. 752. In 1923 the statute was amended to increase the compensation, N.H. Laws, 1923, c. 91; and in 1925, as amended, it was reenacted without change, N.H. Public Laws, c. 178.

[131] For the appellant there was a brief and oral argument by Thomas P. Maroney of Milwaukee.

For the respondents there was a brief by Shaw, Muskat & Paulsen, attorneys, and Jack R. Wiedabach of counsel, all of Milwaukee, and oral argument by Mr. Wiedabach.

CURRIE, J.

This appeal presents a conflict-of-laws problem with respect to interspousal liability for tort growing out of an automobile accident. Which law controls, that of the state of the forum, the state of the place of wrong, or the state of domicile? Wisconsin is both the state of the forum and of the domicile while California is the state where the alleged wrong was committed. Under Wisconsin law a wife may sue her husband in tort. Under California law she cannot. Peters v. Peters (1909), 156 Cal. 32, 103 Pac. 219; Cubbison v. Cubbison (1946), 73 Cal. App. (2d) 437, 166 Pac. (2d) 387; and Paulus v. Bauder (1951), 106 Cal. App. (2d) 589, 235 Pac. (2d) 422.

This court was first faced with this question in Buckeye v. Buckeye (1931), 203 Wis. 248, 234 N. W. 342. In that case Wisconsin was the state of the forum and domicile, while Illinois was the state of the place of wrong. It was there held that the law governing the creation and extent of tort liability is that of the place where the tort was committed, citing Goodrich, Conflict of Laws (1st ed.), p. 188, sec. 92. From this premise it was further held that interspousal immunity from tort liability necessarily is governed [132] by the law of the place of injury. This principle of conflict of laws has been consistently applied in all subsequent interspousal actions in automobile accident cases^[1] except the recent case of Bodenhagen v. Farmers Mut. Ins. Co. (1958), 5 Wis. (2d) 306, 92 N. W. (2d) 759, 95 N. W. (2d) 822, hereinafter discussed.

The principle enunciated in the Buckeye Case and followed in subsequent Wisconsin cases, that the law of the place of wrong controls as to whether one spouse is immune from suit in tort by the other, is the prevailing view in the majority of jurisdictions in this country. Anno. 22 A. L. R. (2d) 1248, 1251-1253, entitled, "Conflict of laws as to right of action between husband and wife or parent and child." It is also the rule adopted in Restatement, Conflict of Laws, p. 457, sec. 378, and p. 470, sec. 384 (2). However, criticism of the rule of the Buckeye Case, by legal writers, some of them recognized authorities in the field of conflict of laws, and recent decisions by the courts of California, New Jersey, and Pennsylvania, have caused us to re-examine the question afresh.

In 1942, Prof. Walter Wheeler Cook of the Northwestern University Law School faculty published his book entitled, "The Logical and Legal Bases of the Conflict of Laws." It was his conclusion that the law of the domicile, and not the place of wrong, should be applied in determining whether [133] a wife had capacity to sue her husband in tort. Pages 248 to 250 and 345 to 346 of text. Also, in 1942, Max Rheinstein in an article in 41 Michigan Law Review, 83, 97, advocated that the law of domicile should be applied in conflict-of-laws situations to determine whether there is an immunity for tort grounded on family relationship. Ernst Rabel, in his "The Conflict of Laws: A Comparative Study" (1945), pp. 322, 323, pointed out that in the civil-law countries of western Europe prohibitions, which exclude lawsuits in tort between husband and wife, are considered part of family law and, therefore, the law of the domicile governs and not the law of the place of wrong.

The most-comprehensive treatment of the problem that we have discovered is the excellent 30-page article in 15 University of Pittsburgh Law Review, 397, entitled, "Interspousal Liability for Automobile Accidents in the Conflict of Laws: Law and Reason versus the Restatement," by Alan W. Ford, published in 1954. The article contains a careful analysis of the American cases on the subject commencing with our own Buckeye Case. The author's conclusion is stated as follows (p. 423):

"The lex fori and the lex loci delicti rules have already been criticized as inadequate. Between them, these two rules encompass all of the American cases. To find a more-desirable alternative we must, therefore, go beyond those cases. The foreign experience, briefly discussed above, is a useful starting point. As that experience suggests, there is some logic in separating questions of status and tort, in determining the incidents of the marital relationship by the family law, and the problems of tort by the law of torts. If a conflicts problem is involved, there is no reason why both questions should be determined by the law of torts. Instead, the two questions should remain separate, and problems of status or capacity could be referred, by an appropriate conflicts rule, to the law of the place of the domicile."

[134] Ford, in his article, cited four cases of interspousal immunity in which American courts have refused to apply the law of the place of wrong to an automobile accident situation but instead applied their own law of the forum: Poling v. Poling (1935), 116 W. Va. 187, 179 S. E. 604; Mertz v. Mertz (1936), 271 N. Y. 466, 3 N. E. (2d) 597, 108 A. L. R. 1120; Kircher v. Kircher (1939), 288 Mich. 669, 286 N. W. 120; and Kyle v. Kyle (1941), 210 Minn. 204, 297 N. W. 744. In all four cases one spouse sued the other in the state of domicile where there existed the immunity from suit in tort in a situation where the accident had occurred in a state which had abolished the immunity. The decisions were based on the ground that the public policy of the forum state forbade one spouse suing the other in tort.^[2] The holdings in these four cases are highly significant because they are inconsistent in result with the theory that the injured spouse possessed a vested right in the cause of action which had accrued in the state where the alleged negligence occurred. Furthermore, these cases are authority for the principle that public policy may be a controlling factor to be considered by the court of the forum state in determining which law it will apply in resolving a conflict-of-laws problem. This factor of public policy is also acknowledged in Restatement, Conflict of Laws, pp. 9, 10, sec. 5, comment b.

The first case to break the ice and flatly hold that the law of domicile should be applied in determining whether there existed an immunity from suit for tort based upon family relationship is Emery v. Emery (1955), 45 Cal. (2d) [135] 421, 289 Pac. (2d) 218. In that case two unemancipated minor sisters sued their unemancipated minor brother and their father to recover for injuries sustained in an automobile accident that occurred in the state of Idaho, the complaint alleging wilful misconduct in order to come within the provisions of the Idaho "guest" statute. All parties were domiciled in California. The opinion by Mr. Justice TRAYNOR recognized that the California court, in passing on the question of whether an unemancipated minor child may sue the parent or an unemancipated brother, had a choice to apply the law of the place of wrong, of the forum, or of the domicile. It was held that the immunity issue was not a question of tort but one of capacity to sue and be sued, and rejected the law of the place of injury as "both fortuitous and irrelevant." In deciding whether to apply the law of the forum, or the law of the domicile, the opinion stated this conclusion (45 Cal. (2d) 428, 289 Pac. (2d) 222):

"Although tort actions between members of the same family will ordinarily be brought in the state of the family domicile, the courts of another state will in some cases be a more convenient forum, and thus the question arises whether the choice-of-law rule should be expressed in terms of the law of the forum or that of the domicile. We think that disabilities to sue and immunities from suit because of a family relationship are more properly determined by reference to the law of the state of the family domicile. That state has the primary responsibility for establishing and regulating the incidents of the family relationship and it is the only state in which the parties can, by participation in the legislative processes, effect a change in those incidents. Moreover, it is undesirable that the rights, duties, disabilities, and immunities conferred or imposed by the family relationship should constantly change as members of the family cross state boundaries during temporary absences from their home."

Since the decision in Emery v. Emery, supra, two other courts have held that, when a court is confronted with a [136] conflict-of-laws problem in order to resolve an issue of whether there is an immunity from suit for tort based upon a family relationship, the law to be applied is that of the domicile state. Koplik v. C. P. Trucking Corp. (1958), 27 N. J. 1, 141 Atl. (2d) 34; and Pittman v. Deiter (1957), 10 Pa. D. & C. (2d) 360. The conclusion reached by the New Jersey supreme court in the Koplik Case, after first having rejected the law of the place of injury as applicable to the immunity question, is stated succinctly as follows (27 N. J. 11, 141 Atl. (2d) 40):

"As a final word on the subject, we hold the view that even where an actual conflict-of-laws problem is directly presented, it is sensible and logical to have disabilities to sue and immunities from suit arising from the family relationship determined by reference to the law of the state of the family domicile when the suit is brought in that state. Otherwise, the lex loci will be permitted to interfere seriously with a status and a policy which the state of residence is primarily interested in maintaining." (Citing Emery v. Emery, supra, and Ford's article in 15 University of Pittsburgh Law Review.)

Among recent law-review articles and notes approving the holding of one or more of the afore-cited three cases, which have held that immunity from suit based on family relationship is a matter of family law rather than tort law and should be governed by the law of the domicile, are: 31 Temple Law Quarterly, 117, 4 Wayne Law Review, 79, and 33 Indiana Law Journal, 297. All were published in 1958.

The two reasons most often advanced for the common-law rule, that one spouse may not sue the other, are the ancient concept that husband and wife constitute in law but one person, and that to permit such suits will be to foment family discord and strife. The Married Women's Acts of the various states have effectively destroyed the "one person" [137] concept thereby leaving as the other remaining reason for the immunity the objective of preventing family discord. This is also the justification usually advanced for denying an unemancipated child the capacity to sue a parent, brother, or sister.^[3] Clearly this policy reason for denying the capacity to sue more properly lies within the sphere of family law, where domicile usually controls the law to be applied, than it does tort law, where the place of injury generally determines the substantive law which will govern. In making a choice between the law of the domicile and the law of the forum, in those situations where the action is not brought in the state of the domicile, the afore-quoted persuasive arguments advanced by the California and New Jersey courts in Emery v. Emery, supra, and Koplik v. C. P. Trucking Corp., supra, in favor of applying the law of domicile to decide any issue of incapacity to sue based upon family relationship, seem unanswerable.

We are convinced that, from both the standpoint of public policy and logic, the proper solution of the conflict-of-laws problem, in cases similar to the instant action, is to hold that the law of the domicile is the one that ought to be applied in determining any issue of incapacity to sue based upon family relationship.

However, in order to adopt such a conflict-of-laws rule it will be necessary to overrule at least six prior decisions of this court, and to partially overrule two others. If it ever is proper for a court to depart from stare decisis, we scarcely can perceive of a more-justifiable situation in which to do so. In the first place, the rule being discarded is one lying [138] in the field of conflict of laws as applied to torts so that there can hardly have been any action taken by the parties in reliance upon it. Secondly, strong reasons of public policy exist for supplanting such rule by a better one which does not unnecessarily discriminate against the citizens of our own state.

The most-compelling argument against taking such step is that it departs from the rule of the Restatement, and disturbs the sought-after ideal of establishing some uniformity in the conflict-of-laws field. However, as well appears from the cases hereinbefore cited, there is a clearly discernible trend away from the rule of the Restatement in so far as it requires that the law of the place of wrong is to be applied in determining questions of incapacity to sue based on family status. Furthermore, it must be recognized that, in the field of the conflict of laws, absolutes should not be made the goal at the sacrifice of progress in furtherance of sound public policy. The American Law Institute is now engaged in redrafting a revised Restatement of Conflict of Laws. In such work of revision the question of whether the law of the domicile, rather than the law of the place of wrong, should be applied, in resolving an issue of interfamily immunity from suit in tort, will undoubtedly receive consideration.

After most careful deliberation, it is our considered judgment that this court should adopt the rule that, whenever the courts of this state are confronted with a conflict-of-laws problem as to which law governs the capacity of one spouse to sue the other in tort, the law to be applied is that of the state of domicile. We, therefore, expressly overrule the cases of Buckeye v. Buckeye, supra; Forbes v. Forbes (1938), 226 Wis. 477, 277 N. W. 112; Bourestom v. Bourestom (1939), 231 Wis. 666, 285 N. W. 426; Garlin v. Garlin (1951), 260 Wis. 187, 50 N. W. (2d) 373; [139] Scholle v. Home Mut. Casualty Co. (1956), 273 Wis. 387, 78 N. W. (2d) 902; and Hansen v. Hansen (1956), 274 Wis. 262, 80 N. W. (2d) 230. We do not overrule the result in the cases of Nelson v. American Employers' Ins. Co. (1951), 258 Wis. 252, 45 N. W. (2d) 681, and 22 A. L. R. (2d) 1244, and Jaeger v. Jaeger (1952), 262 Wis. 14, 53 N. W. (2d) 740, but we disapprove of the holding therein that the law of place of injury controlled the issue of interspousal immunity.

It is interesting to note that, if the rule now adopted had been applied in the first six cited overruled automobile accident cases, the result in four of such cases would have been to hold that there was no interspousal immunity from suit, because the parties were domiciled in Wisconsin. Only in Forbes v. Forbes, supra, and Bourestom v. Bourestom, supra, would immunity from suit have been found to exist if the law of the domicile, as interpreted by this court, had been applied to such issue.

The Forbes Case is the only one of the eight where the place of wrong was Wisconsin. The parties were nonresidents domiciled in Illinois. For the reasons hereinbefore set forth, it is apparent that Illinois rather than Wisconsin was the state most concerned with the policy considerations of whether the plaintiff wife had capacity to sue her husband. Furthermore, the plaintiff in the Forbes Case would not have fared worse in Wisconsin than she would have in the state of domicile.

The Bourestom Case involved "forum shopping" which ought to be discouraged rather than tolerated. There Oklahoma was the state of injury, Minnesota the state of domicile, and Wisconsin the state of forum. The adoption of the new rule would not in theory close the doors of our courts to a nonresident spouse in such a situation instituting suit in Wisconsin. However, the defendant spouse might have [140] a good defense in bar if he pleaded, and proved, the true state of domicile, and took the proper steps to bring before the trial court the law of such state granting the immunity.

Perhaps a word of caution should be sounded to the effect that the instant decision should not be interpreted as a rejection by this court of the general rule that ordinarily the substantive rights of parties to an action in tort are to be determined in the light of the law of the place of wrong. This decision merely holds that incapacity to sue because of marital status presents a question of family law rather than tort law.

Earlier in this opinion we made a brief reference to our recent decision in Bodenhagen v. Farmers Mut. Ins. Co. In that case a wife domiciled in Wisconsin instituted suit against the insurer of her husband's automobile to recover for injuries sustained in an automobile accident occurring in Illinois as a result of the alleged negligence of the husband. We first looked to Illinois law to determine whether a cause of action existed in favor of the plaintiff wife. The Illinois law was interpreted by us as holding that its interspousal immunity against suit in tort barred only the remedy and not the cause of action, and, therefore, Wisconsin, as the forum state, would not apply such law. A motion for rehearing was filed subsequent to our original decision and the brief filed in support thereof caused this court to grant a rehearing. The reason for so doing was that we entertained grave doubt as to whether we had reached the right conclusion in holding that under Illinois law the interspousal immunity to suit in tort was procedural and not substantive. Because of the result reached in the instant appeal we now find it unnecessary to pass on such last-mentioned point. In an opinion this day handed down in such rehearing in the Bodenhagen Case we have affirmed the original result, but have grounded the same upon the principle [141] herein adopted, i.e., that the law of domicile controls the issue of interspousal immunity.

The concurring opinion by Mr. Justice FAIRCHILD protests that we should not adopt the conflict-of-laws rule, that interspousal immunity to suit in tort should be determined by the law of the domicile, because this was not urged in the briefs or arguments of counsel. However, appellant's brief did cite and summarize Emery v. Emery, supra, and on the oral argument appellant's counsel also cited Koplik v. C. P. Trucking Corp., supra, in which two cases such rule was adopted by the California and New Jersey courts. While the appellant's counsel did not request that we overrule Buckeye v. Buckeye, supra, and the subsequent Wisconsin cases dealing with this particular conflict-of-laws problem, he did specifically seek to have this court apply California's conflict-of-laws principle, that the law of the domicile is determinative of interspousal capacity to sue, to this particular case. However, to do so would violate the well-recognized principle of conflict of laws that, where the substantive law of another state is applied, there necessarily must be excluded such foreign state's law of conflict of laws. Restatement, Conflict of Laws, p. 11, sec. 7 (b); 11 Am. Jur., Conflict of Laws, p. 296, sec. 3; 15 C. J. S., Conflict of Laws, p. 872, sec. 7; Griswold, Renvoi Revisited, 51 Harvard Law Review, 1165, 1170, 1173;^[4] and note in 18 George Washington Law Review, 559.

The reason why the authorities on conflict of laws almost universally reject the renvoi doctrine (permitting a court [142] of the forum state to apply the conflict-of-laws principle of a foreign state) is that it is likely to result in the court pursuing a course equivalent to a never-ending circle. For example, in the instant case, if the Buckeye v. Buckeye line of Wisconsin cases is to be followed, the Wisconsin court first looks to the law of California to see whether a wife can sue her husband in tort. California substantive law holds that she cannot. However, California has adopted a conflict-of-laws principle that holds that the law of the domicile determines such question. Applying such principle the court is referred back to Wisconsin law because Wisconsin is the state of domicile. Again the court applies Wisconsin law and, under the prior holdings of the Buckeye v. Buckeye line of authorities, would have to again refer to California law because such line of cases does not recognize that the law of domicile has anything to do with interspousal immunity, but holds that the law of the state of injury controls.

Wisconsin certainly should not adopt the much-criticized renvoi principle in order not to overrule the Buckeye v. Buckeye line of cases, and still permit the plaintiff to recover. Such a result we believe would contribute far more to produce chaos in the field of conflict of laws than to overrule the Buckeye v. Buckeye line of cases and adopt a principle the soundness of which has been commended by so many reputable authorities.

By the Court.—Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.

FAIRCHILD, J. (concurring).

I concur in the reversal of the judgment, but do not find it necessary to reexamine settled Wisconsin law in order to do so. A fundamental change in the law of Wisconsin such as the one announced by the majority in this case, which will importantly affect many people, should be made, if at all, in [143] a case where the question is necessarily presented. Both parties assumed that their case would be decided under the principle which is being overturned by the majority, and accordingly, we have not had the benefit of brief or argument upon the validity of the principle.

1. Solution of this case without overruling previous decisions. Plaintiff wife alleges a personal injury tort cause of action arising in California against defendant husband. Defendant husband pleads that she has no cause of action because she was his wife. It has been the rule in Wisconsin that the existence or nonexistence of immunity because of family relationship is substantive and not merely procedural, and is to be determined by the law of the locus state. The law of California is that the existence or nonexistence of immunity is a substantive matter, but that it is an element of the law of status, not of tort. The tort law of California is no more concerned with immunity than is Wisconsin's. Thus it makes no difference under the facts of this case whether we look directly to the law of Wisconsin to determine that immunity is not available as a defense or look to the law of Wisconsin only because California, having no general tort principle as to immunity, classifies immunity as a matter of status.

2. Policy questions requiring full consideration. Under the principle announced by the majority that the existence or nonexistence of immunity is a matter of status, our courts must henceforth recognize immunity as a defense where the alleged tort occurred in Wisconsin, but the parties are married and are domiciled in an immunity state. This would mean that such an act is or is not a remedial wrong depending upon the state where the parties happen to be domiciled.

The determination of domicile is not always easy, yet the courts will henceforth be required to determine it in many cases where it has henceforth been considered immaterial. [144] A good many married couples who may have domicile in other states are in Wisconsin for extended periods. Some, for example, are students at colleges and universities, some stationed here for military duty, some temporarily assigned here by employers, and some vacationing. Under the rule abandoned by the majority, a tortious act done in Wisconsin by a nonresident and injuring his spouse gave rise to the same civil liability as if done by a permanent resident.

The problem involved apparently has its principal impact because of injuries sustained in automobile accidents where members of a family travel together across state lines. Under the new rule Wisconsin courts will not countenance the defense of immunity for a Wisconsin husband when sued by his wife for an injury occurring in an immunity state. I concede there is some merit to the logic relied upon and that there may be some practical benefit to Wisconsin people. It is to be remembered, however, that under the law of many states a wife will have no cause of action for simple negligence of her husband because she will be a gratuitous guest. The fact that she and her husband are domiciled in Wisconsin and that they are on a family trip which began in Wisconsin will not exempt her from that principle of tort law. Thus the purely practical benefit to Wisconsin people which might appear at first blush to arise from the new rule will be limited.

If we deem it necessary and proper at this stage to reject a well-settled rule of law, should we limit ourselves to all the implications of the rule that the availability of the defense of immunity is to be governed by the law of domicile ? If we have a free choice of what the law is to be henceforth might not the public policy of Wisconsin be better served by some other alternative ? One possible alternative is that the availability of the defense of family immunity will be determined by the law of the forum. Actually this is [145] the result reached in a good many of the decisions, although different reasons are given. Admittedly, the proposition that family immunity is substantive and destroys or prevents the existence of a cause of action can be supported by neater logic than a proposition that it is only a denial of a remedy in the courts of a particular state, but these arguments are metaphysical and might well be re-examined if greater justice would be accomplished as a practical matter by a change in thinking.

Another possible alternative would be that the forum state when faced with the question of immunity choose the law of whichever state (locus or domicile) conforms more closely to its own. The party adversely affected by such a rule can be said to have subjected himself to the law of the domicile state by choosing to live in it or to the law of the locus state by choosing to travel in it. Our legislature has set up a similar rule for a choice of law with respect to the mode of execution of a will outside of Wisconsin. Sec. 238.07, Stats.

In summary, I would dispose of the present case upon the theory that California law governs the existence of the alleged cause of action and that in California the immunity question cannot be decided by resort to the law of torts but rather the law of status. I would leave to a later case the consideration of whether the Wisconsin rule of choice of law as to the defense of family immunity should remain as heretofore or, if it is to be changed, which rule will be best.

I am authorized to state that Mr. Justice BROWN concurs in this opinion.

[1] The case of Jaeger v. Jaeger (1952), 262 Wis. 14, 53 N. W. (2d) 740, sometimes has been mistakenly interpreted as holding that the law of the domicile applied. However, as explained in Hansen v. Hansen (1956), 274 Wis. 262, 264, 80 N. W. (2d) 230, the law of Arizona, the place of wrong, was actually applied, but because the Arizona Married Women's Act was similar to that of Wisconsin and the Arizona courts had not construed the same with reference to tort liability, we presumed the Arizona judicial interpretation of such act would be the same as that of Wisconsin. The discussion in the Jaeger Case with reference to the law of domicile was confined to the community-property issue and must be so interpreted.

[2] Conversely, after New York had abolished the immunity, it refused to hold that it offended the public policy of the forum state to apply the law of the state of wrong and deny recovery where the state in which the accident occurred still preserved the immunity. Coster v. Coster (1943), 289 N. Y. 438, 46 N. E. (2d) 509, 146 A. L. R. 702, rehearing denied, 290 N. Y. 662, 49 N. E. (2d) 621.

[3] Rather persuasive arguments were advanced before this court in the recent case of Schwenkhoff v. Farmers Mut. Automobile Ins. Co. (1959), 6 Wis. (2d) 44, 93 N. W. (2d) 867, that other policy considerations require that such immunity be abolished. However, in the opinion it was pointed out that the 1957 legislature had rejected a bill which would have abolished the immunity, and that the problem was one for the legislature rather than the court.

[4] While Griswold in such article written in 1938 himself advocates the application of the renvoi doctrine in a case like the instant one, he concedes that the overwhelming weight of authority is contra. Cook, in his "The Logical and Legal Bases of the Conflict of Laws," pp. 248-250, expressly rejects Griswold's proposed solution and recommends instead the adoption of the conflict-of-laws principle that the law of the domicile should be applied in the first instance to a question of interspousal immunity to suit in tort.

Lee S. Kreindler, Leonard J. Fassler and Jay R. Handwerger for appellant.

William J. Junkerman, James B. McQuillan and Maurice L. Noyer for respondent.

Judges DYE, BURKE and FOSTER concur with Chief Judge DESMOND; Judge FULD concurs in result in a separate opinion; Judge FROESSEL concurs for affirmance in a separate opinion in which Judge VAN VOORHIS concurs.

[37] Chief Judge DESMOND.

Defendant is a common carrier of passengers by air. Plaintiff's intestate, a passenger on one of defendant's planes, was killed in August, 1958 when the airship crashed and burned at Nantucket, Massachusetts, in the course of a flight from a New York airport. The complaint pleads three causes of action but this appeal has to do, immediately, with the second count only. That part of the complaint has been dismissed for insufficiency by the Appellate Division which reversed Special Term's denial of defendant's motion to dismiss. Plaintiff appeals here from the dismissal. We shall have occasion farther on in this opinion to discuss the first cause of action in [38] which plaintiff sues under the Massachusetts wrongful death statute.

The disputed second cause of action alleges that plaintiff's intestate before boarding the plane at La Guardia Airport bought from defendant a ticket for transportation to Nantucket, that defendant by causing his death in the crash breached its contract to carry him safely and that as a result the passenger's estate and his dependent suffered substantial damages (stated as $150,000) for which his administrator sues and which include "loss of accumulations of prospective earnings of the deceased." There was in effect at the time of this disaster section 2 of chapter 229 of the General Statutes of Massachusetts which gave a cause of action against a common carrier for negligently causing a passenger's death but limited to not less than $2,000 or more than $15,000 the damages to be awarded therefor. Special Term, citing Dyke v. Erie Ry. Co. (45 N.Y. 113) and other authorities, held that plaintiff could sue in contract and that the law of New York, the place of contract, governed such a cause of action and not the law of Massachusetts, the place of the wrong. The Appellate Division, considering the Dyke decision inapplicable, took the position that the second cause of action, however labeled or phrased, is in tort for negligently causing death and as such is subject to the damage limitation of the Massachusetts wrongful death statute.

Plaintiff's submission as to this second count is that it sounds in contract and so is governed for all purposes by the law of New York, the place of contract. If the alleged contract breach had caused injuries not resulting in death, a New York-governed contract suit would, we will assume, be available (Dyke v. Erie Ry. Co., 45 N.Y. 113, 117, supra; Busch v. Interborough R. T. Co., 187 N.Y. 388; Fish v. Delaware, L. & W. R. R. Co., 211 N.Y. 374, app. dsmd. 245 U. S. 675; Restatement, Conflict of Laws, § 337). But it is law long settled that wrongful death actions, being unknown to the common law, derive from statutes only and that the statute which governs such an action is that of the place of the wrong (Whitford v. Panama R. R. Co., 23 N.Y. 465; Baldwin v. Powell, 294 N.Y. 130). Language found in the old case of Doedt v. Wiswall (15 How. Prac. 128, 141. affd. 15 How. Prac. 145) cannot be used to overrule so basic a rule. It follows, as the Appellate Division correctly held here, [39] that plaintiff as administrator has no separate right to sue this carrier in contract for causing his intestate's death (Webber v. Herkimer & Mohawk St. R. R. Co., 109 N.Y. 311), that the cause of action for injuries did not survive (Bernstein v. Queens County Jockey Club, 222 App. Div. 191, and cases cited therein), and that the second cause of action had to be dismissed.

That does not mean, however, that for this alleged wrong plaintiff cannot possibly recover more than the $15,000 maximum specified in the Massachusetts act. Modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. The number of States limiting death case damages has become smaller over the years but there are still 14 of them (compare the list in Tiffany, Death by Wrongful Act [1st ed., 1893], p. xvii, with the data found in Martindale-Hubbell Law Digests, 1960 ed., Vol. IV). An air traveler from New York may in a flight of a few hours' duration pass through several of those commonwealths. His plane may meet with disaster in a State he never intended to cross but into which the plane has flown because of bad weather or other unexpected developments, or an airplane's catastrophic descent may begin in one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State's people against unfair and anachronistic treatment of the lawsuits which result from these disasters. There is available, we find, a way of accomplishing this conformably to our State's public policy and without doing violence to the accepted pattern of conflict of law rules.

Since both Massachusetts (General Statutes, ch. 229, §§ 1, 2, as in effect in Sept. 1958) and New York (Decedent Estate Law, § 130) authorize wrongful death suits against common carriers, the only controversy is as to amount of damages recoverable. New York's public policy prohibiting the imposition of limits on such damages is strong, clear and old. Since the Constitution of 1894, our basic law has been (N. Y. Const., art. I, § 16; N. Y. Const. [1894], art. I, § 18) that "The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation." Each later revision of the State Constitution has included this same prohibition [40] against limitations of death action damages. The reasons for its adoption are set forth in the proceedings of the 1894 Constitutional Convention (see discussion in Lincoln's Constitutional History of New York, Vol. III, pp. 57-65, and in Medinger v. Brooklyn Heights R. R. Co., 6 App. Div. 42 [1896]). New York's original wrongful death law (L. 1847, ch. 450), passed very soon after Lord Campbell's Act became law in Great Britain, had like the latter no restriction as to damages. The Legislature later imposed such limits but the convention which drew the 1894 Constitution rejected and forbade them. "The argument which evidently controlled the convention in its action consisted of the claim that the arbitrary limitation was absurd and unjust in measuring the pecuniary values of all lives to the next of kin by the same arbitrary standard" (Justice HATCH in Medinger opinion, supra, p. 46). The absurdity and injustice have become increasingly apparent in the six decades that have followed. For our courts to be limited by this damage ceiling (at least as to our own domiciliaries) is so completely contrary to our public policy that we should refuse to apply that part of the Massachusetts law (see Mertz v. Mertz, 271 N.Y. 466, 471; Shannon v. Irving Trust Co., 275 N.Y. 95, 102, 103). The Massachusetts cases likewise say that Massachusetts will enforce the lex loci delicti in wrongful death suits unless Massachusetts public policy forbids (see Higgins v. Central New England R. R. Co., 155 Mass. 176; Jackson v. Anthony, 282 Mass. 540, 545, 547).

An illustration of our readiness to reject such arbitrary limitations, on public policy grounds, is Conklin v. Canadian-Colonial Airways (266 N.Y. 244). In the Conklin suit plaintiff's intestate had purchased in Albany a plane ticket to Newark, New Jersey, which on its face limited to $5,000 defendant's liability for negligently causing a passenger's death. That limitation, just like the limitation here in question, was contrary to New York's public policy but valid in New Jersey which was the place of the plane disaster and of defendant's alleged wrongdoing. The public policy which allowed us to strike down the contractual limitation in Conklin's case has no less effect here. We will still require plaintiff to sue on the Massachusetts statute but we refuse on public policy grounds to enforce one of its provisions as to damages.

[41] Actually, we have in Wooden v. Western N. Y. & Pa. R. R. Co. (126 N.Y. 10, 16-17) a flat holding by our court that, in an action brought for causing a wrongful death in Pennsylvania, the New York courts would enforce our limitation of damages (as it then existed) although Pennsylvania had no such limitation. The reason, equally pertinent here, is that the "restriction pertains to the remedy rather than the right" (p. 16) and "does not strictly affect the rule of damages, but rather the extent of damages, and that extent, as limited or unlimited, does not enter into any definition of the right enforced or the cause of action permitted to be prosecuted." Loucks v. Standard Oil Co. (224 N.Y. 99) does not overrule Wooden (supra). Looking at the true holding of the Loucks case (supra) rather than picking out language from the opinion, we find that the court was merely deciding that the minimum set for recovery in the Massachusetts wrongful death statute did not make it a "penal statute" unenforcible here because contrary to our public policy (see Chief Judge CARDOZO'S reference to Loucks in Wikoff v. Hirschel, 258 N.Y. 28, 30).

As to conflict of law rules it is of course settled that the law of the forum is usually in control as to procedures including remedies (Franklin Sugar Refining Co. v. Lipowicz, 247 N.Y. 465, 468; Russell v. Societe Anonyme, 268 N.Y. 173, 181). However, as Professor Leflar says (Conflict of Laws, § 60), remedial and substantive "shade into each other constantly" and "the law of the forum normally determines for itself" whether a given question is one of substance or procedure. This is the conventional approach and was the one used in the only New York appellate decision on the subject (Murray v. New York, O. & W. R. R. Co., 242 App. Div. 374; see Collins v. American Auto. Ins. Co., 230 F.2d 416, 422; 32 N. Y. U. L. Rev. 786; Restatement, Conflict of Laws, § 584). As to whether the measure of damages should be treated as a procedural or a substantive matter in wrongful death cases, there is authority both ways (see, for instance, Walton School of Commerce v. Stroud, 248 Mich. 85) and no controlling New York decision except the statements quoted in an earlier paragraph of this opinion from the Wooden decision (126 N.Y. 10, 17, supra). It is open to us, therefore, particularly in view of our own strong public policy as to death action damages, to [42] treat the measure of damages in this case as being a procedural or remedial question controlled by our own State policies.

Some of the older Federal cases (see Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190; Slater v. Mexican Nat. R. R. Co., 194 U. S. 120, 126) gave defendants the benefits of limitations of damages found in the law of the place of wrong, regardless of where the actions were brought. Those cases, however, are not binding on us and do not bring into play the full faith and credit clause of the Constitution (see Wells v. Simonds Abrasive Co., 345 U. S. 514). We think that time has proven the wisdom and practicality of the Slater case dissent, which adopted the rule of Wooden v. Western N. Y. & Pa. R. R. Co. (supra).

From all of this it follows that while plaintiff's second or contract cause of action is demurrable, his first count declaring under the Massachusetts wrongful death action is not only sustainable but can be enforced, if the proof so justifies, without regard to the $15,000 limit. Plaintiff, therefore, may apply if he be so advised for leave to amend his first cause of action accordingly.

The judgment appealed from should be affirmed, with costs.

FULD, J. (concurring).

I, too, believe that the judgment dismissing the contract cause of action alleged in the second count of the complaint should be affirmed. However, having made that determination, I would go no further.

To expatiate on this, I would say that, while I agree that the second count — the only one before us — fails to state a cause of action, I find no warrant or justification for going beyond that single issue and considering, sua sponte, questions which underlie the complaint's first count alleging a cause of action for wrongful death under the Massachusetts statute. I do not mean to suggest that, in passing upon a case, a court is confined to the authorities furnished or the arguments advanced by counsel, for I deem it clear that, within certain limits, a court is free to reach a decision concerning the issue posed on any ground available. (See, e.g., Rentways, Inc., v. O'Neill Milk & Cream Co., 308 N.Y. 342, 349.) But, as I have already indicated, this does not entitle a court to discuss or decide an issue which not only is not argued by the parties, but actually is not raised or presented by the record.

[43] In this case, the court is called upon to decide only the sufficiency of the second cause of action, sounding in contract, and, quite obviously, whether the monetary limitation specified in the Massachusetts wrongful death statute may be disregarded has nothing whatsoever to do with that decision. Consequently, I feel constrained to limit my discussion to the validity of the contract cause of action. Decision on the question whether the maximum prescribed by the Massachusetts statute measures the amount which the plaintiff may recover on his first cause of action should await an appeal where that issue is presented and the parties have had an opportunity of briefing and arguing it.

As to the question before us, the sufficiency of the contract cause of action, one might well begin by noting that in Baker v. Bolton (1 Camp. 493), decided in 1808, Lord ELLENBOROUGH declared, by way of dictum, that, "In a civil court, the death of a human being could not be complained of as an injury". Learned authors attacked the rule thus announced as "obviously unjust" — it had as its consequence that "it was more profitable for the defendant to kill the plaintiff than to scratch him" (Prosser, Torts [2d ed., 1955], p. 710) — and as being "based upon a misreading of legal history". (3 Holdsworth, History of English Law [3d ed., 1923], p. 336; see, also, Salmond, Torts [12th ed., 1957], p. 625; Winfield, Death as Affecting Liability in Tort, 29 Col. L. Rev. 239, 252-253.) Nevertheless, harsh and anomalous though it was, the rule prevailed in England and in this country until the enactment of wrongful death statutes. (See 2 Harper and James, The Law of Torts [1956], pp. 1284-1285; Prosser, op. cit., pp. 709-710; Salmond, op. cit., pp. 623-625.)

Although it appears that in England, even before enactment in 1846 of the wrongful death statute known as Lord Campbell's Act, it had been held that, "where death is caused by the breach of a carrier's implied contract for safe carriage, the executor or administrator, although he could not sue in tort, [could] sue in contract, and recover damages suffered by the decedent's estate" (Tiffany, Death by Wrongful Act [2d ed., 1913], p. 21; see, also, Salmond, op. cit., p. 624), no such exception seems to have been recognized in the United States. In fact, in New York, this English exception for wrongful death arising out of a breach of contract of safe carriage was disavowed in this court as early as 1866 in the case of Green v. Hudson Riv. R. R. Co. [44] (2 Keyes 294; 2 Abb. Ct. App. 277, affg. 28 Barb. 9), where the complaint alleged "that the deceased became a passenger on a train from Albany to New York, under the usual engagement to be safely carried, and that by the gross carelessness and unskillfulness of the defendant's agents, a collision occurred, by means of which the said [passenger] was then and there killed" (28 Barb. 9, 14). Although the rule was acknowledged to be "harsh or narrow" (2 Keyes, at p. 303; 2 Abb. Ct. App., at p. 286), the court, nevertheless, denied recovery and concluded that "It is sufficient that the rule is settled so firmly that courts would travel beyond their province into the boundaries of legislation by any attempt to alter it, or to create, by their decision, causes of action not before known" (2 Keyes, at p. 295; 2 Abb. Ct. App., at p. 279; see also, Duncan v. St. Luke's Hosp., 113 App. Div. 68, affd. 192 N.Y. 580).

Thus, whatever may have been the English rule as to recovery for death arising out of a breach of contract of safe carriage, in New York, at least, there was no recovery at common law. The question arises, then, whether, following enactment of a wrongful death statute in this State, an action could be brought on contract for damages for death resulting from the breach of a carrier's agreement. The answer seems to be in the affirmative where the wrongful act causing death, as well as the agreement, occurred in this State. (See Doedt v. Wiswall, 15 How. Prac. 128, affd. 15 How. Prac. 145; cf. Greco v. Kresge Co., 277 N.Y. 26, 34, citing the Doedt case with approval; Roche v. St. John's Riverside Hosp., 96 Misc. 289, affd. 176 App. Div. 885; Keiper v. Anderson, 138 Minn. 392.)^[1] This, though, does not resolve the problem presented by the case before us, where, although the agreement of safe carriage was made in New York, the wrongful act causing death occurred elsewhere.

If this were a matter of first impression, it might be effectively argued that, where "two or more communities are touched or [45] affected by a factual sequence", the "guide to the governing law" should be the jurisdiction having "the most significant contact or contacts" (Harper, Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen's Essays, 56 Yale L. J. 1155, 1161). And, since the contract of safe carriage was undertaken in New York and since this fact provides a more "significant contact" than the adventitious occurrence of the crash in Massachusetts, it might well be further urged, this State's wrongful death statute and not that of Massachusetts should apply.

Impressed though I am by the theoretical soundness of such a position, I am forced to the conclusion that it is foreclosed by our decisions. In Crowly v. Panama R. R. Co. (30 Barb. 99), which presents a fact pattern not unlike that in this case, the plaintiff's intestate had entered into a contract of safe carriage in New York and was killed as the result of acts of negligence of the carriers in Panama. Although Panama had no wrongful death statute at the time, New York did, and the plaintiff attempted to bring himself under that statute by arguing that "the contract was made, and the fare paid, in this state" (30 Barb., at p. 109). The court rejected this argument and dismissed the complaint. Not only has the Crowly decision been cited with approval by this court (e.g., Leonard v. Columbia Steam Nav. Co., 84 N.Y. 48, 53; McDonald v. Mallory, 77 N.Y. 546, 550; Whitford v. Panama R. R. Co., 23 N.Y. 465, 475), but we have categorically declared, and quite recently, that our wrongful death statute (Decedent Estate Law, § 130) "applies only to actions brought for damages for a wrong committed here causing the death of a person" and is to be given no extra-territorial effect in cases where injury and death occur outside of the State. (Baldwin v. Powell, 294 N.Y. 130, 132; see, also, Debevoise v. New York, L. E. & W. R. R. Co., 98 N.Y. 377, 379; McDonald v. Mallory, 77 N.Y. 546, 550, supra.)

Nor does section 116 of the Decedent Estate Law, upon which the plaintiff relies, give him a right to sue in contract for his intestate's allegedly wrongful death. That statute, simply declaring that "actions upon contract, may be maintained by and against executors, in all cases in which the same might have been maintained, by or against their respective testators", creates no new rights or liabilities. Since, as is apparent, plaintiff's [46] intestate could not have maintained the cause of action alleged in the second count, there was no right of action to survive his death.

In sum, then, limiting consideration to the only matter before us, it is my conclusion that no action ex contractu is available to the plaintiff under either the common law of New York or its wrongful death statute and that, therefore, the Appellate Division properly granted the defendant's motion to dismiss the second cause of action.

FROESSEL, J. (concurring).

We concur for affirmance of the judgment appealed from, dismissing plaintiff's second cause of action. We should reach no other question. In this case, defendant moved to dismiss the second cause of action for legal insufficiency, and nothing more; the subsequent notices of appeal were limited accordingly. Special Term denied the motion. The Appellate Division unanimously reversed and granted the motion, properly stating that it was "not concerned here with the causes of action for wrongful death and conscious pain and suffering". We think the court below was entirely correct.

Although the first cause of action is not before us, and it has not been argued or passed upon by the courts below, the majority of this court is now reaching out to consider that cause of action, without application of any kind with respect thereto on the part of anyone. It is exercising discretion usually exercised by the courts below, as to a cause of action not properly before us, and granting plaintiff leave to apply for amendment of that cause of action on the assumption that plaintiff's intestate was a resident of this State at the time of his death. This procedure is not only unprecedented, but extends beyond our province.

Moreover, the court is laying down a new rule of law whereby we disregard the Massachusetts limitation as to damages in a wrongful death action, thereby undermining the accepted pattern of conflict of law rules, in effect overruling numerous decisions of this court, and completely disregarding the overwhelming weight of authority in this country.

It has long been recognized as the law of this State that the right to maintain an action for wrongful death is dependent upon the existence of a statute creating such a right at the place where the injury resulting in death occurred (Whitford v. Panama R. R. Co., 23 N.Y. 465, 482; [47] Baldwin v. Powell, 294 N.Y. 130, 132; Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co., 272 App. Div. 246, 250, affd. 297 N.Y. 619). Equally well settled is the proposition that our own statute creating such a cause of action (Decedent Estate Law, § 130) is not to be given extra-territorial effect in cases where the wrongful death occurred outside of this State (Debevoise v. New York, L. E. & W. R. R. Co., 98 N.Y. 377; Baldwin v. Powell, supra; Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co., supra).

Plaintiff's right to maintain this action must therefore stem from the provisions of the Massachusetts statute (Mass. Gen. Stats., ch. 229, § 2). That statute, however, expressly limits the extent of the right given, and declares that the damages assessed thereunder shall not be more than $15,000. In effect, this is tantamount to providing that there shall be no cause of action for wrongful death beyond this amount. The majority, by giving extraterritorial effect to our prohibition against the limitation of recovery in such actions, would permit plaintiff to recover on the basis of the foreign law, and yet not be bound by its express limitation. Such action was vigorously condemned by the Supreme Court of the United States in Slater v. Mexican Nat. R. R. Co. (194 U. S. 120, 126) where Mr. Justice HOLMES, writing for the court, stated: "It seems to us unjust to allow a plaintiff to come here absolutely depending on the foreign law for the foundation of his case, and yet to deny the defendant the benefit of whatever limitations on his liability that law would impose." This was reaffirmed in Western Union Tel. Co. v. Brown (234 U. S. 542, 547) and Black Diamond v. Stewart & Sons (336 U. S. 386, 395-396 [1948]).

No sound reason appears why our courts, in enforcing such a right at all, should not enforce it in its entirety. This court has no power to determine what the public policy of Massachusetts should be (Coster v. Coster, 289 N.Y. 438, 443), and we may not ignore foreign law affecting the substantive rights of the parties merely because such law differs from our own (id., at p. 442).

In Loucks v. Standard Oil Co. (224 N.Y. 99, 111), although it was suggested that our courts might refuse to enforce a right based upon a foreign statute "that outrages the public policy of New York", this court held that a Massachusetts act, very similar to the one with which we are now confronted, must be [48] enforced — despite the fact that we "cannot give them the same judgment that our law would give if the wrong had been done here" (224 N. Y., at pp. 111-112). Thus Judge CARDOZO in his opinion clearly indicated that the maximum damages would be controlled by the Massachusetts statute.

In Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co. (272 App. Div. 246, 250, affd. 297 N.Y. 619, supra), where our court refused to apply New York law as to additional liability, it was held to be "well established that a cause of action for wrongful death and the extent of the damage recoverable is governed by the laws of the place where the injuries causing death were inflicted" (emphasis supplied).

As long ago as Whitford v. Panama R. R. Co. (23 N.Y. 465, 481-482, supra) this court adopted as "eminently sound and conclusive" the discussion of the precise question now before us by Mr. Justice WOODRUFF in Whitford v. Panama R. R. Co. (3 Bosw. 67, 83) where it was stated (23 N.Y. 482): "`Let it be supposed that New Granada has by law * * * prescribed the cases in which the defendants should be liable for a death caused by the negligence of their servants, and the extent of that liability. It would not, we think, be gravely insisted, that they use their railroad under any other or greater responsibility than is so prescribed.'" (Emphasis supplied.)

This court has repeatedly affirmed decisions below, which held that, in a wrongful death action based on a foreign statute, interest shall not be allowed upon the amount of recovery from the time of death when the foreign statute contained no provision therefor (Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28, affd. on opinion below 153 N.Y. 688; Wyman v. Pan Amer. Airways, 181 Misc. 963, affd. 267 App. Div. 947, affd. 293 N.Y. 878; Colliton v. United Shipyards, 256 App. Div. 923, affd. 281 N.Y. 582). The principle involved in these cases is the same as that involved in the case at bar. Since we refuse to allow interest (although our own statute requires it as part of the amount of recovery [Decedent Estate Law, § 132]) when no provision is made therefor in the law of the place of death, that same policy requires that no greater damages shall be allowed than are there provided. The "right to interest is inseparable from the right to damages" (Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28, 32, supra).

[49] This court has also held, in an action for conversion, that the amount of damages recoverable must be governed by the law of the State where the loss was occasioned and not by our law (Hasbrouck v. New York Cent. & H. R. R. R. Co., 202 N.Y. 363, 377).

The views here expressed have also been recognized as the law of New York by the Federal courts sitting in this State. In Maynard v. Eastern Air Lines (178 F.2d 139 [2d Cir.]) the court submitted the issue of negligence to the jury with instructions that the recovery could not exceed $20,000, the limitation imposed by the terms of the Connecticut death statute, the State where the accident occurred. On appeal, the Court of Appeals for the Second Circuit affirmed, holding that according to the law of New York the Connecticut law with its limitation of damages was applicable.

In our opinion, these precedents are conclusive, and may not be disregarded without being overruled. The principle which they affirm is clearly the well-established law of this State.

Although we recognize that decisions from other jurisdictions are not controlling, it should be noted that the overwhelming weight of judicial authority in the United States is in accord with the view that the law of the place of injury governs not only the existence of the cause of action for wrongful death, but also the measure of damages (see cases collected in 15 A. L. R. 2d 765-766; 25 C. J. S., Death, § 28, p. 1101; Goodrich, Conflict of Laws, § 105; Restatement, Conflict of Laws, §§ 391, 412, 417; Leflar, Conflict of Laws, § 114). While Professor Leflar does note (§ 60, p. 109) that the procedural and substantive law "shade into each other constantly", he clearly states, in the same chapter, that "The size of the right is a part of the right" and that, therefore, the "measure of damages should be treated as a substantive rather than a procedural matter, and that the amount of the award should be determined by the rules of law of the place of the tort * * * rather than by the rules of the forum, as such. There is some authority the other way, treating measure of damages as procedure merely, on the idea that it does not constitute the right but only the remedy given in substitution for the right. This carries a nice theory to a point at which it conflicts with common understanding." (Leflar, Conflict of Laws, § 65, p. 118.)

[50] The notewriter in 15 A. L. R. 2d cites 25 jurisdictions in this country in support of that majority view, and but 4 for the proposition that the amount of damages is governed by the law of the forum. Two of the latter jurisdictions, Massachusetts (Higgins v. Central New England & W. R. R. Co., 155 Mass. 176) and New York (Wooden v. Western N. Y. & Pa. R. R. Co., 126 N.Y. 10), no longer adhere to that view and have joined the ranks of the majority (see Jackson v. Anthony, 282 Mass. 540, 546-547, for an express rejection of the Higgins decision; Loucks v. Standard Oil Co., 224 N.Y. 99, supra, and the other cases referred to earlier in this opinion for a rejection of the Wooden dicta. That dicta mistakenly relied on Dennick v. Central R. R. of N. J., 103 U. S. 11, which, in speaking of the remedy, merely decided that a New York administratrix may sue for a wrongful death in New Jersey; it in nowise held that damages might be treated as a procedural or remedial question).

Furthermore, questions relating to such defenses as contributory (comparative) negligence (Fitzpatrick v. International Ry. Co., 252 N.Y. 127), charitable immunity (Kaufman v. American Youth Hostels, 5 N Y 2d 1016), incapacity of wife to sue (Coster v. Coster, 289 N.Y. 438, supra) and the Statute of Limitations (Lipton v. Lockheed Aircraft Corp., 307 N.Y. 775) have all been regarded by this court as regulated by the law of the place of the injury rather than our own law, since they involve the substantial rights of the parties. In each of these cases we applied a foreign rule of law, although such rule was clearly contrary to the law of our own State, and we applied it whether it benefited the plaintiff or the defendant. In our opinion, the defense raised in the case at bar must be treated in the same manner — viz., by applying the law of Massachusetts, the place of death.

The majority would apply our own law of damages because the place of injury is entirely fortuitous. The same argument may be made with respect to each of the cases just referred to. We should not overrule well-established principles, nor "refuse to enforce a foreign right" at our pleasure, to suit our "individual notion of expediency or fairness" (Loucks v. Standard Oil Co., 224 N.Y. 99, 111, supra).

The position adopted by the majority may result in the situation where, in a single airplane crash in which numerous passengers from various States are killed, a different law will be [51] applied in each action resulting therefrom. The courts of each State, if they followed the majority view, would then apply their own law of damages to the case. As Judge CARDOZO pointed out in the Loucks case (supra), "The theory of the statute personal, a body of national law which the citizen carries about with him * * * is a theory which has yielded generally in this country to the principles of the territorial system and the doctrine of vested rights" (224 N. Y., supra, at p. 109). We should not attempt to revive it now.

The case of Conklin v. Canadian-Colonial Airways (266 N.Y. 244) has no applicability to the question before us. That case involved the validity of a contractual limitation upon a carrier's common-law liability. In the instant case, not only is the limitation imposed by statute rather than by contract, but, as we have seen, there was no underlying common-law liability.

Finally, we have grave doubts as to the constitutionality of the majority view in light of the decision of the Supreme Court of the United States in Hughes v. Fetter (341 U. S. 609) and section 1738 of title 28 of the United States Code, the implementing statute under the full faith and credit clause of the United States Constitution (art. IV, § 1), which provides that full faith and credit be accorded to the acts of the Legislature of any State.

Accordingly, the judgment appealed from dismissing plaintiff's second cause of action should be affirmed, with costs.

Judgment affirmed.

[1] In the Greco case (277 N.Y. 26, supra), this court unequivocally approved the Deodt case, stating significantly (p. 34): "Nor is an action any the less on contract because the elements of damage arise out of a trespass (Sullivan v. Dunham, 161 N.Y. 290), or an assault (Busch v. Interborough R. T. Co., supra) or other personal injury (Doedt v. Wiswall, 15 How. Pr. 128; affd., 15 How. Pr. 145; Gillespie v. Brooklyn Heights R. R. Co., 178 N.Y. 347). Violation of a duty owing to another is a wrongful act; breach of a contract involving violation of duty may be likewise a wrongful act."

[1063] Marilyn Sher, Chonin & Sher, P.A., Coral Gables, Fla., Joseph C. Segor, Miami, Fla., for plaintiff-appellant.

Christopher Lynch, Adams, Hunter, Angones, Adams, Adams & McClure, Miami, Fla., for Donald Rafael Penalver, M.D.

Michael J. Holland, Condon & Forsyth, New York City, Michael K. McLemore, Kimbrell & Hamann, P.A., Miami, Fla., for Iberia Airlines of Spain.

Before HATCHETT and EDMONDSON, Circuit Judges, and MARKEY^[1], Chief Circuit Judge.

HATCHETT, Circuit Judge:

Applying Florida's choice of law principles, we affirm the district court's ruling that an action for medical malpractice brought by an employee of a foreign agency injured in Florida is barred by Florida's Worker's Compensation law.

FACTS

Iberia Airlines of Spain employed Juan L. Garcia, the appellant, as a flight attendant. Iberia Airlines is an agency of the Spanish government and is incorporated under the laws of Spain. On August 3, 1984, during a flight layover in Miami, Florida, Garcia was "mugged" and beaten. Garcia sustained injury to his left wrist and received treatment at Jackson Memorial Hospital (Public Health Trust of Dade County). Dr. Penalver, also an employee of Iberia, treated Garcia's injury. When Garcia returned to his home in Spain, he experienced complications with the injury and his personal physician advised him that the treatment for the injury was improper. Garcia received 100-percent of his salary and medical expenses through the Spanish workmen's compensation system.

PROCEDURAL HISTORY

In the Florida state courts at Miami, Garcia brought a medical malpractice action against Iberia Airlines and its employee, Dr. Penalver. He also brought a negligence action against Jackson Memorial Hospital (Public Health Trust of Dade County) and the University of Miami. Iberia Airlines removed the action to district court based upon the provisions of the Foreign Sovereign Immunity Act of 1976. Iberia Airlines is a foreign state within the meaning of the Act.^[2] Iberia and Penalver moved for summary judgment on the ground that Garcia, an Iberia employee, is not entitled to bring a tort suit in Florida against his employer and co-employee.

Contending that Spanish law would permit a lawsuit in Florida notwithstanding the fact that he received compensation in Spain, Garcia also moved for partial summary judgment. The district court granted summary judgment in favor of Iberia and Penalver holding that Florida law bars tort recovery when one is entitled to full compensation for injuries under the Florida Worker's Compensation Act. Noting that Florida has the "most significant relationship" to the parties, the district court then remanded Garcia's suit against Public Health Trust and the University of Miami for further proceedings in state court, 657 F.Supp. 99.

CONTENTIONS AND ISSUES

On appeal, Garcia asserts that the district court erred in ruling that Florida had the "most significant relationship" regarding the question of employer immunity under Florida's Worker's Compensation Act. [1064] Garcia also contends that the district court erred in determining that the appellees are entitled to immunity under Florida's Worker's Compensation Act.

The issues are: (1) whether the district court applied the correct choice of law rule; and (2) whether the district court erred in holding that Florida's Worker's Compensation Act barred Garcia from recovery.

I.

A. Choice of Law

In Acme Circus Operating Co., Inc. v. Kuperstock, 711 F.2d 1538 (11th Cir.1983), this court applied choice of law principles and articulated a step-by-step analysis. This court noted:

The first step in choice of law analysis is to ascertain the nature of the problem involved, i.e., is the specific issue at hand a problem of law of contracts, torts, property, etc. The second step is to determine what choice of law rule the state ... applies to that type of legal issue. The third step is to apply the proper choice of law rule to the instant facts and thereby conclude which [jurisdiction's] substantive law applies.

Kuperstock, 711 F.2d at 1540.

The parties agree that Florida's choice of law rules apply because Florida is the site where the creation of liability originated. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Coral Gables Imported Motorcars v. Fiat Motors, 673 F.2d 1234, 1238 (11th Cir.1982). Nevertheless, the parties disagree on how the Florida choice of law rules should resolve the dispute.

In step one, the question is whether the action arises in contract or tort. Garcia contends that this is a contract action. The district court held for the appellees ruling that Garcia's claim is grounded in tort. We agree. Although the parties entered into the contract for employment in Spain, this action is filed in tort. Garcia sought compensation for medical malpractice allegedly committed in Florida. Additionally, Garcia alleged in his amended complaint that Iberia and Penalver were negligent in failing to render proper medical attention. The district court correctly noted that "[i]t is in Florida where the cause of the injury and the alleged negligent treatment occurred." Given the facts and pleadings, it is clear that Garcia filed a tort action.

Second, we must determine what choice of law principle Florida courts apply to issues of tort liability. In Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980), the Florida Supreme Court abandoned the traditional lex loci delicti rule (law where injury occurred prevails) in favor of the modern "most significant relationship" test as set forth in the Restatement (Second) of Conflict of Laws §§ 145-146 (1971).

Section 145 of the Restatement sets forth the general principles in determining the applicable law under the "most significant relationship" analysis. Section 145 states:

§ 145 The General Principle

1. The rights and liability 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. [Emphasis added.]

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 domicile, 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 ought to be evaluated according to their relative importance with respect to the particular issue.

Section 146 of the Restatement (Second) of Conflict of Laws provides:

[1065] § 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.^[3]

The Bishop court reasoned that "[o]ther factors may combine to outweigh the place of injury as a controlling consideration, making the determination of applicable law a less mechanical, and more rational, process." Bishop, 389 So.2d at 1001. Several jurisdictions have abandoned the lex loci doctrine for the more flexible modern approach to conflict of laws analysis.^[4] Florida indisputably was the site of the injury in this case; therefore, the "most significant relationship" test should be applied. Bishop, 389 So.2d at 1001; see also, Hertz Corp. v. Piccolo, 453 So.2d 12 (Fla.1984) (where Florida Supreme Court reaffirmed the rationale set forth in Bishop).

B. Application of State Law

The final step in the Kuperstock analysis is to apply the "most significant relationship" test to the facts in this case and decide which jurisdiction's substantive law applies. The district court correctly ruled that Florida has the "most significant relationship" to the occurrence and the parties. Garcia argues that Spain has the most significant relationship between the parties. He argues that: (1) Spain has an ownership interest in Iberia Airlines; (2) Spain is the residence of Iberia Airlines; (3) the employment relationship is centered in Spain; and (4) Spain is where the flight originated. Although Garcia articulates several contacts with Spain, the alleged medical malpractice occurred in Florida. Garcia was mugged and injured during a flight layover in Miami, Florida. Dr. Penalver, an Iberia employee, treated Garcia for his injuries in Florida, thereby creating a doctor-patient relationship in Florida. Dr. Penalver is domiciled in Florida, and the alleged medical malpractice is centered in Florida. See generally Restatement (Second) of Conflict of Laws §§ 145-146 (1971).

Moreover, Florida has a significant interest in maintaining compliance with its worker's compensation laws. Florida intended its worker's compensation system to strike a balance between compensating injured workers and limiting the liability of employers for accidents. Section 440.09 of the Florida Statutes provides in pertinent part that:

Where an accident happens while the employee is employed elsewhere than in this state, which would entitle him or his dependents to compensation if it had happened in this state, the employee or his dependents shall be entitled to compensation.... However, if an employee shall receive compensation or damages under the laws of any other state, nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided herein.

Fla.Stat.Ann. § 440.09 (West 1981). Florida workmen's compensation law provides that liability of the employer shall be exclusive and in place of all other liability to any third-party tortfeasor and to the employee. See Fla.Stat.Ann. § 440.10-.11 (West 1981); Seaboard Coastline Railroad Co. v. Smith, 359 So.2d 427, 428 (Fla.1978). Although Spanish law allows recovery in tort actions, Florida law does not permit an employee receiving worker's compensation benefits to institute an action in tort against his employer or his co-employee. [1066] Fla.Stat.Ann. § 440.11 (West 1981). Florida has articulated a strong public policy with respect to employer immunity for work related injuries. Because Spanish law allows suit against employers, Spanish law would contravene strong public policy of the forum state. See Restatement (Second) of Conflict of Laws § 6 (West 1971). This rationale was clearly set forth in Urda v. Pan Am World Airways, 211 F.2d 713 (5th Cir.1954). In Urda, the appellant's husband, an employee with Pan American, died in an aircraft disaster in Brazil. Brazilian law permitted suit against employers, however, Pan American was subject to the workmen's compensation law of Florida. The court held that "[w]ith the policy of the State of Florida expressed so positively in its statutes, it seems clear to us that any cause of action created by the law of Brazil cannot be enforced in Florida contrary to the public policy of the forum." Urda, 211 F.2d at 715; see Pacific Employer's Insurance Co. v. Industrial Accident Commission of California, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940 (1939) (where state was not required to enforce the worker's compensation law of a foreign state).

In this case, Garcia received 100-percent compensation for his injuries under the Spanish worker's compensation system. As the district court noted, "[Garcia] is barred from seeking a tort recovery when he has already availed himself of the benefits obtainable under Spanish worker's compensation law. The fact that Spanish law would permit such a double recovery is of no significance...." See Fla.Stat.Ann. §§ 440.09 and 440.11 (West 1981); Urda, 211 F.2d at 715. The application of Spanish law would directly circumvent the established policy in Florida regarding employer immunity.^[5] Given the facts and policy reasons presented in this case, the district court was correct in its application of Florida's choice of law rules.

II.

Garcia also argues for the first time on appeal that Iberia and Penalver are not entitled to immunity under Florida Statute § 440.11. Essentially, Garcia contends that an employer is immune from suit under Florida's worker's compensation law only if the employer secures payment of compensation as required by the statute. See Fla.Stat.Ann. § 440.11 (West 1981). We need not decide this question on appeal. Garcia did not raise the issue in the district court. "Failure to raise an issue, objection or theory of relief to the trial court is generally fatal." Denis v. Liberty Mutual Insurance Co., 791 F.2d 846, 849 (11th Cir.1986). "[F]actual assertions that defeat a summary judgment cannot be presented for the first time to appellate court, and only those matters properly before district court for summary judgment consideration are subject to appellate review." Denis, 791 F.2d at 849 (citing DeBardeleben v. Cummings, 453 F.2d 320 (5th Cir.1972) and Garner v. Pearson, 732 F.2d 850 (11th Cir.1984)). Nevertheless, appellate courts "will consider an issue not raised in district court if it involves a pure question of law, and if refusal to consider it would result in a miscarriage of justice." Roofing and Sheet Metal Services, Inc. v. LaQuinta Motor Inns, Inc., 689 F.2d 982, 990 (11th Cir.1982). In this case, the question of whether Iberia secured payment of compensation under the Worker's Compensation Act is purely a factual question. Thus, Garcia's appeal on this issue is barred.

[1067] Likewise, we need not decide whether the Spanish statute of limitations bars Garcia's cause of action. In Bates v. Cook, 509 So.2d 1112 (Fla.1987), the Florida Supreme Court held that the significant relationship test should be employed to decide conflict questions concerning statute of limitations as well as issues of substantive law. Bates, 509 So.2d at 1114-15. Because we find that Florida has the "most significant relationship" between the parties, the question of whether Spain's statute of limitations applies is irrelevant.

Accordingly, the grant of summary judgment in favor of Iberia Airlines and Penalver is affirmed.

AFFIRMED.

[1] Honorable Howard T. Markey, Chief U.S. Circuit Judge for the Federal Circuit, sitting by designation.

[2] Act of October 21, 1976, Pub.L. No. 94-583, 90 Stat. 2891 (1976), codified at 28 U.S.C. §§ 1330, 1332(a)(2)-1332(a)(4), 1391(f), 1441(d), and 1602-1611; see also Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371 (5th Cir.1980).

[3] Section 6 of the Restatement (Second) emphasizes several factors to consider in choice of law determinations. Some of these factors are: (a) needs of interstate and international systems; (b) policies of the forum; (c) policies of other interested states; (d) protection of justified expectations; and (e) certainty and predictability of result.

[4] Several state courts have rejected the place of injury rule and adopted one of several "multiple factors" theories. Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979); First National Bank v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); and Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968).

[5]Although Florida has accepted several provisions of the Restatement (Second) of Conflicts, it is unclear whether Florida has adopted section 184. Section 184 provides in pertinent part:

Recovery for tort or wrongful death will not be permitted in any state if the defendant is declared immune from such liability by the workmen's compensation statute ... and under which

(a) the plaintiff has obtained an award for the injury, or

(b) the plaintiff could obtain an award for the injury, if this is the state (1) where the injury occurred ...

If Florida follows this section, clearly Garcia would be precluded from recovery under Spanish law. Nevertheless, we are satisfied that statutory authority and the rationale set forth in Urda indicate Florida's interest in maintaining employer immunity under its worker's compensation system.

Present: HENNESSEY, C.J., QUIRICO, KAPLAN, WILKINS, & LIACOS, JJ.

[305] Neil Sugarman for the plaintiff.

Philip A. Brooks for the defendant.

WILKINS, J.

The plaintiff and the defendant, Massachusetts residents and employees of a Massachusetts corporation, were acting in the course of their employment when, on June 1, 1970, in the State of Connecticut, the plaintiff, a passenger, was injured as the result of the defendant's negligent operation of a motor vehicle. If the relevant circumstances involved in this case all related to Massachusetts, the plaintiff would not be entitled to recover from his negligent fellow employee. On the other hand, if the relevant circumstances all related to Connecticut, the plaintiff would be entitled to recover. We conclude that the law of this Commonwealth applies properly in this case to bar the plaintiff from recovering from his fellow worker.

The plaintiff was employed by the Ethan Ames Manufacturing Co., Inc. (company), which had its principal offices at its Turners Falls retail store outlet, of which the plaintiff was the manager. The plaintiff and the defendant were residents of this Commonwealth and had been hired here. The company had no store in Connecticut and had no employees resident or principally working there. It had purchased workmen's compensation insurance covering its employees as provided in G.L.c. 152. On June 1, 1970, the plaintiff, the defendant, and others traveled by motor vehicle on their employer's business from Massachusetts into Connecticut intending to pass through that State without stopping. Trips to Connecticut to pick up merchandise were an occasional part of the plaintiff's duties. The vehicle, which was registered in Massachusetts, was owned by the company.

The defendant, employed as a chauffeur, was operating the vehicle when it struck the rear of a motor vehicle which was stopped in the passing lane of the Connecticut [306] Turnpike. The plaintiff, who sustained injuries in the accident, collected workmen's compensation benefits from the company's insurance carrier.

The judge denied the defendant's motion for a directed verdict which was grounded on the claim that G.L.c. 152 prohibited a suit against a fellow employee. The jury returned a verdict for the plaintiff. However, on motion of the defendant, the judge ordered judgment for the defendant notwithstanding the verdict. Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974). The judge's decision was correct.

In this Commonwealth, where compensation benefits are available under G.L.c. 152, an employee injured in the course of his employment by the negligence of a fellow employee may not recover from that fellow employee if he also was acting in the course of his employment. Murphy v. Miettinen, 317 Mass. 633, 635 (1945), and cases cited. This long settled principle of Massachusetts law has not been subject to serious dispute, and is not challenged in this proceeding.^[1]

An employee covered under the Massachusetts Workmen's Compensation Act is afforded compensation for an injury which occurs outside of the Commonwealth. G.L.c. 152, § 26. Unless an employee gives timely notice to his employer of his reservation of common law rights (and the plaintiff here did not do so), an employee is treated as having waived "his right of action at common law or under the law of any other jurisdiction in respect to an injury ..." occurring in the course of his employment. G.L.c. 152, § 24.^[2] "Massachusetts has assumed exclusive jurisdiction [307] of rights to compensation where the contract of employment is made here and no notice in writing of claim of rights is given." Migues's Case, 281 Mass. 373, 375 (1933). We think it clear that Massachusetts law, as expressed in its Workmen's Compensation Act, contemplates that an employee covered under the act must look solely to his employer's compensation insurer (and any independent third-party tortfeasor) when he is injured in the course of his employment by the negligence of a fellow employee who is also acting in the course of his employment and that it makes no difference that the injury was received in another State.^[3]

Although the defendant argues that these principles of Massachusetts law are dispositive of this case, the plaintiff contends that the substantive law of this Commonwealth is inapplicable to injuries arising from a tort which occurred in Connecticut. He argues that the Legislature has not mandated the application of Massachusetts substantive law to this case, that appropriate conflict of laws principles require this court to look to the law of the State of Connecticut, and that the law of Connecticut would permit the plaintiff to recover against a fellow employee in these circumstances.

It is clear that an employee injured in Connecticut in the course of his employment by the negligent operation of a motor vehicle by a fellow employee may recover from that fellow employee under Connecticut law. Many States permit a suit against a fellow employee in such circumstances. Annot., 21 A.L.R.3d 845, 850 (1968). Section 31-293a of the Connecticut General Statutes provides that "[i]f an employee ... has a right to benefits or compensation under ... [the Connecticut Workmen's Compensation Act] on account of injury ... caused by the negligence or [308] wrong of a fellow employee, ... [that] right shall be the exclusive remedy of such injured employee ... and no action may be brought against ... [the] fellow employee except for negligence in the operation of a motor vehicle ... or unless such wrong was wilful or malicious" (emphasis supplied). Conn. Gen. Stat. § 31-293a (1977). That statutory provision seemingly would not aid the plaintiff in this case because he probably had no right to compensation under the Connecticut compensation act where the Massachusetts compensation act extended a right to benefits in this circumstance. Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 464-465 (1923) (out-of-State compensation law applied to the exclusion of the Connecticut compensation law). Cf. Douthwright v. Champlin, 91 Conn. 524, 529-530 (1917) (Connecticut compensation act applied because, at the time, the Massachusetts act did not reach extraterritorially). But even if that provision of the Connecticut Workmen's Compensation Act did not apply to the plaintiff, apparently the plaintiff would be entitled to recover against a fellow employee under Connecticut law. In Stulginski v. Cizauskas, 125 Conn. 293, 297-298 (1939), at a time when there was no statutory restriction on suits against a fellow employee, the plaintiff was entitled to recover against a negligent fellow employee even after compensation benefits were paid. See Farm Bureau Mut. Auto. Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 543 (1954). Thus, we accept the plaintiff's claim that, as to motor vehicle tort claims, the law of Connecticut does not bar tort actions against fellow employees where the injury occurs in the course of their common employment. We shall return to the question whether the Supreme Court of Connecticut would apply this general principle when a plaintiff has workmen's compensation benefits available under the law of the place of his employment and under that law the employee waives any claims against a fellow employee for injuries incurred within or without the State of his employment while each is in the course of his employment.

1. We start our analysis by noting that the choice of [309] law question involved in this case is not of constitutional dimensions. We are free to apply Connecticut law or Massachusetts law, just as Connecticut would have been free to apply the law of either State if this action had been brought there. Carroll v. Lanza, 349 U.S. 408, 413-414 (1955). 4 A. Larson, Workmen's Compensation § 88.21 (1976). Restatement (Second) of Conflict of Laws § 183 (1971).

The issue presented here has not been resolved uniformly in those cases where it has arisen and is left open by the Restatement (Second) of Conflict of Laws. See Restatement (Second) of Conflict of Laws § 184, Comment b (1971).^[4] Some courts have undertaken to resolve the choice of law question by a largely mechanical, conclusory assertion of the result. Thus, the law of the forum has been applied, where the accident occurred out of State, by simply concluding that the forum's public policy is to deny recovery against a fellow employee. Hockmuth v. Perkins, 55 Ga. App. 649, 653 (1937). Fagan v. John J. Casale, Inc., 16 Misc.2d 1046, 1049 (N.Y. Sup. Ct. 1959). We do not regard the Connecticut rule of law as so repugnant to the declared policy of this State that we would not enforce it in appropriate circumstances.^[5] On the other hand, the law of the forum allowing recovery against a fellow employee has been applied to a local accident in disregard of the exemption contained in the law of the State [310] of employment, perhaps on the ground that the exemption of the foreign law is obnoxious to the forum's public policy (Hutzell v. Boyer, 252 Md. 227, 233 [1969]), or on the simple assertion that the law of the place of the alleged tort governs all questions of law (Ellis v. Garwood, 168 Ohio St. 241, 246-247 [1958]).

In situations involving a conflict of laws concerning the fellow employee's claimed exemption from liability, the better reasoned cases focus on the established relationship of the parties, their expectations, and the degree of interest of each jurisdiction whose law might be applied. Stacy v. Greenberg, 9 N.J. 390, 397-398 (1952) (New York employment; New Jersey motor vehicle accident; New York law applied). Hunker v. Royal Indem. Co., 57 Wis.2d 588 (1973) (Ohio employment; Wisconsin motor vehicle accident; Ohio law applied). For cases involving claims against an employer or employer-related defendants, see Miller v. Yellow Cab Co., 308 Ill. App. 217, 232-233 (1941); Wayne v. Olinkraft, Inc., 293 So.2d 896, 898-900 (La. Ct. App. 1974); Busby v. Perini Corp., 110 R.I. 49, 51-53 (1972); Fleet Transp. Co. v. Insurance Co. of N. America, 340 F. Supp. 158, 160-161 (M.D. Ala. 1972); Davis v. Morrison-Knudsen Co., 289 F. Supp. 835, 837 (D. Or. 1968). See also R.A. Leflar, American Conflicts Law § 163, at 405 (rev. ed. 1968). Of course, if the law of the State of the employment does not purport to limit a tort claim against a fellow employee who negligently caused an injury to the plaintiff in an out-of-State accident, there is no reason to bar an action against that fellow employee where the law of the place of the injury permits it. Sade v. Northern Natural Gas Co., 458 F.2d 210, 214 (10th Cir.1972).

In resolving the choice of law problem presented in this case, we believe it is appropriate to look directly to the substantive law of this Commonwealth. Although traditionally we would look to the law of the place of the alleged wrong to determine whether the defendant's conduct was tortious, the matter of the right of a particular resident of this Commonwealth to sue and recover from another resident of this Commonwealth may be governed more [311] properly in particular instances by Massachusetts law.^[6] Thus, in Pevoski v. Pevoski, 371 Mass. 358, 360 (1976), we held, as to a New York motor vehicle accident, that the law of this Commonwealth should determine the question whether one spouse may sue and recover from the other. We noted that the interest of this Commonwealth in the question was more substantial than that of New York, the place of the tort. In the case before us, the interest of Connecticut in the dispute is no more substantial than was that of New York in the Pevoski case.

Although the considerations involved in permitting or denying a right of action differ in this case from those present in the Pevoski case, there are substantial reasons for looking to the law of Massachusetts to determine whether the plaintiff should be allowed to maintain an action against his fellow employee. Most significant are the reasonable expectations of the parties, each of whom was hired and lived in Massachusetts. The workmen's compensation law of this Commonwealth bars an employee from recovering from a negligent fellow employee. An employee, by not reserving his common law rights, is deemed to have waived any claim against a fellow employee regardless of where an accident may occur. The plaintiff had no reasonable basis for expecting to recover in this situation, and the defendant had no reason to expect that he would be liable. Additionally, reference to the law of the place of common employment provides both a certain source for the resolution of the issue and assurance that the ability to maintain a tort action will not turn solely on the fortuitous circumstance of where the accident takes place. See Wilson v. Faull, 27 N.J. 105, 117-120 (1958). The elimination [312] of happenstance, a sort of unknowing geographical Russian roulette, as the controlling factor is particularly significant in a case where no business was to be transacted in the jurisdiction where the injury took place. As a matter of choice of law, we conclude that the substantive law of the Commonwealth should apply to bar recovery by the plaintiff in this case. See R.A. Leflar, American Conflicts Law §§ 104-105 (rev. ed. 1968).^[7]

2. The result we reach might be attained by pursuing a different approach. Accepting the classical rule that the law of the place of the tort determines substantive rights, one might analyze this case in terms of the result which would be reached if this action had been brought in Connecticut. In such a case, one should look to the entire law of the State of Connecticut, including its conflict of laws rules.

The Connecticut Supreme Court has not been confronted with this question, and one can attempt to answer the question under Connecticut law only by anticipating the Connecticut result from decisions of that court on other conflict of laws questions.^[8] In a recent opinion, the [313] Supreme Court of Connecticut has reaffirmed its position that "in motor vehicle cases `[t]he creation and extent of liability are fixed by the law of the state in which the tort is committed.'" Gibson v. Fullin, 172 Conn. 407, 411 (1977), quoting from Bissonnette v. Bissonnette, 145 Conn. 733, 734 (1958). In the Gibson case, the court noted that "[i]t has long been recognized that courts are not bound to decide all issues of a case under the local laws of a single state. In deciding this ultimate question, which does not frequently arise, we believe that the applicable law should not only be simple and easy to determine and apply, but should also lead to predictable and desirable results" (citation omitted). Id. at 412. The holding in the Gibson case was that a retroactive repeal of the Florida guest statute would not be recognized to permit a Connecticut resident to recover from another Connecticut resident for negligence in the operation of a motor vehicle in Florida. The reason given was a strong policy in Connecticut disfavoring retrospective laws. The Connecticut court declined to permit recovery for ordinary negligence by applying the substantive law of Connecticut, rejecting the idea of looking to the law of the jurisdiction with the "most significant relationship" or "center of gravity." Id. at 411. See Restatement (Second) of Conflict of Laws § 145 (1971). The court regarded "this newer approach" as "still very much in a transitional stage" and saw in the case before it "no compelling reason to abandon the traditional rule." Gibson, supra at 411.

On the question of interspousal immunity, the Connecticut court consistently refused to allow one Connecticut spouse to recover from the other who allegedly operated a motor vehicle negligently in a foreign jurisdiction where the local law denied one spouse the capacity to sue the other, even though Connecticut law did not bar such an action as to a Connecticut accident. Menczer v. Menczer, 160 Conn. 563, 564 (1971), and cases cited. Finally, the result was changed prospectively by statute. See Conn. Gen. Stat. § 52-572d (1977). Presumably, without the need for any statutory direction, we would take a view different from that of the Connecticut court as to Massachusetts [314] domiciliaries. See Pevoski v. Pevoski, 371 Mass. 358, 360 (1976).

In situations involving contractual relationships of a less personal nature than marriage, the Connecticut court has indicated respect for the law of the place of contract. In Douthwright v. Champlin, 91 Conn. 524, 529-530 (1917), the Connecticut court stated that it would have recognized the applicability of the Massachusetts workmen's compensation statute if Massachusetts had intended that it have extraterritorial effect. And, as indicated earlier, Connecticut will decline jurisdiction under its own Workmen's Compensation Act where the compensation law of the place of employment applies extraterritorially. Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 464 (1923). In Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333 (1928), the Connecticut court was concerned with a Massachusetts motor vehicle accident in circumstances where the lessor of a vehicle was not liable automatically under Massachusetts law for injury negligently caused by the lessee but was so liable under Connecticut law, the place of the leasing. The court treated the claim as founded on contract, even though the plaintiff had no contract with the defendant or any associated person, and applied Connecticut law. There is, thus, some support for the view that the Connecticut court would regard the facts of this case as involving principally a contractual relationship under Massachusetts law and not simply a tort claim under Connecticut law.

The conclusion that Connecticut might not apply Connecticut law in these circumstances is strengthened by the absence of strong local public policy considerations there in support of authorizing suits against fellow employees. Connecticut has abolished the right to sue a negligent fellow employee as a general principle of its law. The right to sue is limited now to motor vehicle torts and wilful or malicious conduct. Conn. Gen. Stat. § 31-293a (1977). The element of punishment for intentional or malicious wrongdoing is recognized, but Connecticut appears not to be concerned generally either with "punishment" of a negligent [315] wrongdoer or with providing recovery for an injured employee beyond the level of his available workmen's compensation. Indeed, the legislative policy behind the exemption for motor vehicle torts of fellow employees may be grounded on nothing more exhilarating than the allocation of losses between insurers.^[9]

It is true that the exemption of employers from suit by the compensation law of the place of employment involves both a detriment and a gain to the employee, who loses his tort action in exchange for the certainty of compensation benefits (cf. Pinnick v. Cleary, 360 Mass. 1, 15 [1971]), while an exemption granted to a fellow employee involves no similar, direct exchange. However, such employees reciprocally surrender potential claims against one another in circumstances in which each is assured compensation benefits.

3. We suspect that the Connecticut court would regard Connecticut's transient interest in the circumstances of this case as insignificant in relation to the established, continuing [316] employment relationship of the plaintiff, the defendant, and their employer under Massachusetts law. In any event, we elect in this case to look directly to our own substantive law which, no matter where such a suit may be brought, is in the words of the Supreme Court of Connecticut "simple and easy to determine and apply" and leads "to predictable and desirable results." Gibson v. Fullin, 172 Conn. 407, 412 (1977).^[10]

Judgment affirmed.

[1] Statute 1971, c. 941, § 1, which is not applicable to this 1970 accident (see id. § 2), amended G.L.c. 152, § 15, with language which recognizes this judicial construction of G.L.c. 152, § 15. Litigation in this area has dealt principally with the question whether the allegedly negligent fellow employee was acting in the course of his employment. See Connolly v. Miron, 353 Mass. 654 (1968).

[2] In Gould's Case, 215 Mass. 480, 486 (1913), we construed the Workmen's Compensation Act as applicable only to injuries received in this State. Statute 1927, c. 309, §§ 2 and 3, amended predecessor sections of G.L.c. 152, §§ 24 and 26, to refer to other jurisdictions. See Lavoie's Case, 334 Mass. 403, 406 (1956).

[3] In Grant v. Carlisle, 328 Mass. 25, 26 (1951), the employee was injured in Connecticut and conceded that, if she was an employee of the defendant, she was barred under G.L.c. 152, § 24, from maintaining a common law action against her fellow employee. The point which the plaintiff conceded in the Grant case is essentially the issue which is presented here.

[4]The Restatement notes that "[s]ome workmen's compensation statutes extend immunity from liability in tort or wrongful death to certain designated persons, such as fellow employees, who are not required to provide insurance against the particular risk. It is uncertain whether such immunity will be given effect in other states."

Section 184 indicates that the plaintiff's employer would be free from liability in tort in this circumstance.

[5] If P and D while in the course of their employment in Connecticut, and while covered by the Connecticut compensation act, were involved in a motor vehicle accident in which D allegedly negligently injured P, and if P were to sue D in Massachusetts, we would not decline to permit recovery to P on the ground that the Connecticut exception to the fellow servant statute was contrary to public policy of this Commonwealth.

[6] The case was tried, apparently without objection, on the theory of the defendant's negligence and not his gross negligence. This was an application of Connecticut law. See Massa v. Nastri, 125 Conn. 144, 146 (1939). Prior to January 1, 1972 (see St. 1971, c. 865, § 1, inserting G.L.c. 231, § 85L), gross negligence had to be proved under the law of this Commonwealth for a guest to recover. We imply no approval or disapproval of the application of Connecticut law in this respect. See Restatement (Second) of Conflict of Laws § 145, Comment d (1971).

[7] Professor Leflar has summarized the factors influencing choice of law to be: "(A) Predictability of results; (B) Maintenance of interstate ... order; (C) Simplification of the judicial task; (D) Advancement of the forum's governmental interests; (E) Application of the better rule of law." R.A. Leflar, American Conflicts Law § 105, at 245 (rev. ed. 1968).

[8] Almost twenty years ago, two Federal District Court judges undertook to deal with issues in this area. In Anderson v. New York, N.H. & H.R.R., 159 F. Supp. 90, 91 (D. Conn. 1958), the judge concluded that the Connecticut court would consider whether the law of the place of the employment (Massachusetts) would bar a third-party tort action. However, in a closer case factually, involving a motor vehicle tort claim against a fellow employee, another judge concluded, without citing the Anderson case, that Connecticut would permit an employee to maintain an action against a fellow employee for injuries sustained in Connecticut in the course of their employment, although the law of the place of common employment (New York) would not. Greene v. Verven, 204 F. Supp. 585, 587-588 (D. Conn. 1959). In the first case but not the second, the employee had actually collected workmen's compensation benefits. In the second case, the fellow employee's contacts with Connecticut were as tenuous as those in the case before us. These cases were decided, of course, before 1967 when the Connecticut Legislature drastically limited the circumstances in which one could recover from a negligent fellow employee by enacting Conn. Gen. Stat. § 31-293a (1977).

[9] If one assumes the availability of both workmen's compensation coverage and motor vehicle coverage, the difference in legislative policy between Massachusetts and Connecticut results in the insurer of the negligent fellow employee sustaining the loss in Connecticut and in the employer's workmen's compensation carrier sustaining the loss in Massachusetts. This difference in policy seems not to involve a major disagreement on a subject of substantial social importance. In this Commonwealth, where coverage from two different kinds of insurance might be available, the general tendency has been to exonerate the nonworkmen's compensation carrier and to place the responsibility on the workmen's compensation insurer. See G.L.c. 90, § 34A, defining "personal injury protection" for purposes of no-fault insurance coverage to deny no-fault benefits to any person entitled to payments or benefits under G.L.c. 152, the Workmen's Compensation Act. Flaherty v. Travelers Ins. Co., 369 Mass. 482 (1976). See G.L.c. 90, § 34A, as amended through St. 1964, c. 517, § 2, for a pre-no-fault exclusion of coverage for an occupant of a vehicle who was entitled to workmen's compensation benefits. See also G.L.c. 176B, § 14, providing that a medical service corporation (Blue Shield) may not be liable where there is workmen's compensation coverage. In these circumstances, concepts of public policy which, it is said, should guide courts in their choice of law (cf. L. Locke, Workmen's Compensation § 50, at 58 [1968]) do not include punishing the wrongdoer or reimbursing the employer or its insurer. Massachusetts exonerates the fellow employee completely from civil liability. Connecticut does so as well except in two instances (motor torts and intentional misconduct).

[10] In our view, predictability is important not only after but before any claim arises, that is, the parties should have a reasonable basis for ascertaining their rights and potential obligations in advance of any conduct.

[42] O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by John H. Westover, Charles J. Muchmore, Phoenix, for petitioners.

Bentley, Brandes & Brandes by Robert M. Brandes, Phoenix, for intervenors.

Beer & Toone by Thomas L. Toone, Rick E. Olson, Phoenix, for respondent.

GORDON, Vice Chief Justice:

Petitioners, Barbara Bryant, beneficiary of Paul E. Bryant deceased, and Capital Bank, executor for Joyce L. Branham, deceased, bring this special action challenging an order of the trial court that Colorado law apply to the issues of compensatory and punitive damages in petitioners' wrongful death action. The Albuquerque National Bank, personal representative of Mary T. Peters, was allowed to intervene in this special action. The primary issue raised in this special action is whether Arizona or Colorado wrongful death damages law should apply. We have jurisdiction pursuant to Ariz. Const. art. 6 § 5(1).

This case arises out of a tragic airplane crash which took the lives of several victims. On December 31, 1981, Sun West Airlines Flight 104 departed from Alburquerque, New Mexico en route to Durango, Colorado. Upon reaching Durango, the plane crashed while attempting to land at the airport, killing the pilot and passengers Paul Bryant, Mary Peters and Joyce Branham. Joyce Branham's children, Stacy and Jimmy Sadler, Jr. survived the crash. The cause of the crash is disputed by plaintiffs and defendant.

At the time of the crash, Paul Bryant was domiciled in Arizona, Mary Peters in New Mexico, and Joyce Branham in Texas. Sun West Airlines (hereafter Sun West) was an Arizona corporation having its principal place of business in Phoenix and servicing cities in New Mexico, Colorado and Arizona. All three decedents were on their way to Colorado to enjoy ski holidays.

In February 1982, plaintiff Barbara Bryant filed a wrongful death action in Arizona for the death of her husband Paul Bryant against defendant Sun West. Subsequently, similar actions were filed in Arizona for the deaths of Mary Peters, Joyce Branham and for the injuries to Stacy and Jimmy Sadler. All actions were consolidated.

After considering cross motions for summary judgment relating to the issues of compensatory and punitive damages, the trial judge found that Colorado had the most significant relationship to the occurrence and the parties on all compensatory and punitive damage issues, and therefore, held that Colorado law governed all damage issues. Under Colorado law, compensatory damages in wrongful death actions are limited to the net pecuniary loss suffered by the survivor (beneficiary). Lewis v. Great Western Distributing Co. of Borger, 168 Colo. 424, 451 P.2d 754 (1969). Additionally, Colorado prohibits recovery of punitive damages in wrongful death actions. Moffatt v. Tenney, 17 Colo. 189, 30 P. 348 (1892). All plaintiffs would prefer that Arizona law be applied to this case since Arizona places no limitation on compensatory or punitive damages. Accordingly, plaintiffs contend that Arizona law should govern the damage issues because plaintiff-Bryant, decedent-Paul Bryant, and defendant-Sun West were domiciled in Arizona at the time of the crash and because the misconduct occurred in Arizona. Sun West, on the other hand, argues that since Colorado was the place of injury and conduct and the place where the relationship between the parties arose, Colorado law should apply.

In determining which state's law to apply, this Court has adopted the rules embodied in the Restatement (Second) of Conflicts (1971) to analyze and solve conflicts problems arising in Arizona. See Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968) (discarding the doctrine of lex loci [43] delicti). Restatement (Second) of Conflicts (1971) §§ 175 and 178 deal specifically with the choice of law principles in an action for wrongful death and to the damage issues in such an action. Restatement § 178 sets out the choice of law principles for wrongful death damages, and states:

"§ 178 Damages

"The law selected by application of the rule of § 175 [wrongful death] determines the measure of damages in an action for wrongful death."

Comment b of this section notes that merely because the conduct and injury occur in one state does not ipso facto require application of that state's law to the issue of damages, but instead, the law of the state with the "dominant interest" or "greater interest" should govern:

"b. Rationale. The choice-of-law principles stated in § 6 should be applied in determining the state whose local law will be applied to determine the measure of damages in a wrongful death action. In general, this should be the state which has the dominant interest in the determination of this issue. The state of conduct and injury will not, by reason of these contacts alone, be the state which is primarily concerned with the measure of damages in a wrongful death action. The local law of this state will, however, be applied unless some other state has a greater interest in the determination of this issue. In a situation where one state is the state of domicile of the defendant, the decedent and the beneficiaries, it would seem that, ordinarily at least, the wrongful death statute of this state should be applied to determine the measure of damages." (emphasis added)

Restatement § 178 points to § 175 for the principles in determining conflict issues in wrongful death cases:

"§ 175. Right of Action for Death

"In an action for wrongful death, 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." (emphasis added)

As in Restatement § 178, this section emphasizes that the state with the "most significant relationship" or "greater interest" should govern rather than the place of injury:

"d. Rationale. The rule of this Section calls for application of the local law of the state where the injury occurred unless, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties. Whether there is such another state should be determined in the light of the choice-of-law principles stated in § 6. In large part, the answer to this question will depend upon whether some other state has a greater interest in the determination of the particular issue than the state where the injury occurred. The extent of the interest of each of the potentially interested states should be determined on the basis, among other things, of the purpose sought to be achieved by their relevant local law rules and of the particular issue involved (see § 145, Comments c-d)." (emphasis added)

Restatement § 175, comment d. According to Restatement §§ 175 and 178, determination of which state has the greater interest in damages is influenced largely by the factors set forth in Restatement §§ 6 and 145.

Restatement § 145 sets forth the general principles by which tort choice of law questions are to be decided:

"§ 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 [44] 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."

Restatement § 6 sets out the various policy considerations and other factors for making a choice of law selection:

"§ 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.

"(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."

Our analysis starts with the four contacts specified in § 145(2), which will be taken into account in applying the principles enunciated in § 6 in ultimately determining whether Arizona or Colorado has the "most significant relationship" to the occurrence and the parties.^[1] As to the first contact, the place where the injuries occurred is Colorado.

The location of the second contact, the place of the conduct causing the injury, is unclear. Both plaintiffs and defendant contest the cause of the crash. Plaintiffs' position is that the conduct occurred principally in Arizona because that is where Sun West negligently trained its pilots and adopted the policies relating to oxygen equipment in its fleet. Sun West argues that the cause of the crash was due to pilot error or mechanical failure which occurred exclusively in Colorado.

As to the third factor, plaintiff Bryant was domiciled in Arizona, as was her deceased husband, at the time of the crash. Sun West was incorporated and had its principal place of business in Arizona.^[2]

Fourth, since the decedent, Bryant, purchased his ticket from Sun West in Durango, the contractual relationship between decedent and Sun West centered in Colorado.^[3]

Thus, of the four contacts, two attach to Colorado, the place of injury and relationship between the parties, one attaches to Arizona, the domicile of the parties, and one is questionable, the place of [45] conduct. The determination of which state has the most significant contacts, however, is primarily qualitative and not quantitative. Schwartz v. Schwartz, supra; Moore v. Montes, 22 Ariz. App. 562, 529 P.2d 716 (1975). We must determine, therefore, the weight to be given each contact in light of the issues and facts of this case. See Restatement § 145(2) (providing that contacts are evaluated according to their relative importance to the particular issue).

Although Colorado is the state of injury, the state where the injury occurs does not have a strong interest in compensation if the injured plaintiff is a non-resident. See Wendelken v. Superior Court, 137 Ariz. 455, 671 P.2d 896 (1983); Fox v. Morrison Motor Freight, Inc., 25 Ohio St.2d 193, 267 N.E.2d 405 cert. denied, 403 U.S. 931, 91 S.Ct. 2254, 29 L.Ed.2d 710 (1971); Reich v. Purcell, 67 Cal.2d 551, 63 Cal. Rptr. 31, 432 P.2d 727 (1967). Compensation of an injured plaintiff is primarily a concern of the state in which plaintiff is domiciled. Branyan v. Alpena Flying Service, 65 Mich. App. 1, 236 N.W.2d 739 (1975); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 806 (1964).^[4]

As to punitive damages, in airplane crash cases the place of injury is much more fortuitous than the place defendant selects as his place of incorporation and principal place of business or the place of misconduct. Thus, the state where an injury occurs has less interest in deterrence and less ability to control behavior by deterrence or punishment than the state where the defendant airline is domiciled or the state where the misconduct occurred. In re Air Crash Near Chicago, 644 F.2d at 615, Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 405 N.Y.S.2d 441, 376 N.E.2d 914 (1978). Thus, the place of injury carries little weight in our selection of the applicable state law on punitive damages.

The third factor, the domicile of plaintiff and defendant, is significant. Comment b of Restatement (Second) of Conflicts § 178 suggests that if the defendant, the decedent, and the beneficiaries are domiciled in one state, that state's law should govern the damage issues:

"b.

* * * * * *

"The state of conduct and injury will not, by reason of these contacts alone, be the state which is primarily concerned with the measure of damages in a wrongful death action. The local law of this state will, however, be applied unless some other state has a greater interest in the determination of this issue. In a situation where one state is the state of domicil of the defendant, the decedent and the beneficiaries, it would seem that, ordinarily at least, the wrongful death statute of this state should be applied to determine the measure of damages." (emphasis added)

Many jurisdictions, including Arizona have determined that the state where plaintiff and defendant reside has a strong interest in making plaintiff whole and deterring wrongful conduct. See Wendelken, supra; Branyan v. Alpena Flying Service, supra; Fox v. Morrison Motor Freight, Inc., supra; Kilberg v. Northeast Airlines, Inc. 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961); Shaheen v. Schoenberger, 92 Mich. App. 491, 285 N.W.2d 343 (1979); Reich v. Purcell, supra; Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917, cert. dismissed, 393 U.S. 957, 89 S.Ct. 387, 21 L.Ed.2d 371 (1968); Griffith v. United Airlines, Inc. supra; First National Bank in Fort Collins v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); In re Air Crash Near Chicago, supra. Since decedent Bryant, his beneficiaries, and defendant were all domiciled in Arizona at the time of the crash, Arizona has a strong interest in this case.

[46] Finally, although the ticket purchase centered the relationship between the parties in Colorado, this contact is of relatively low importance to this case. Although the relationship between the parties is a contractual relationship, the terms of the contract are not in dispute but only give rise to the duty of care owed by the airline to the passenger on which this action is based. See In re Air Crash Near Chicago, 644 F.2d at 612 (place relationship occurred has low interest in either punishment or protection of nonresident defendants).

Thus, under the facts of this case the domicile contact carries great weight in our determination of which state's law to apply; less significant are the place of injury and the relationship.

After determining the distribution of the contacts and their relative weight, we must next determine the state of the applicable law in light of the choice of law principles stated in § 6 of the Restatement (Second) of Conflicts. As noted by Restatement § 175 comment d, "the answer to this question will depend upon whether some other state has a greater interest in the determination of the particular issue than the state where the injury occurred."

The harmonious relationship or commercial interaction between Arizona and Colorado would best be fostered by applying Arizona law. Application of Arizona damage law allowing unlimited compensatory and punitive damages would fully compensate the Arizona plaintiffs and would deter the wrongful conduct of Sun West or other Arizona based airlines in Arizona and other states' air space. Thus, any interest Colorado has in providing safe travel through its air space would be protected. Application of Colorado law, however, would shield Sun West from a high damage award and potentially leave the Arizona plaintiff not fully compensated. Additionally, Colorado law would not deter future misconduct in Colorado or Arizona.

Certainly, predictability and uniformity of result are of greatest importance when parties are likely to give advance thought to the legal consequences of their transactions, such as the effect and validity of contracts or wills, and not when negligence is at issue. Wendelken v. Superior Court, supra, Gordon v. Kramer, 124 Ariz. 442, 604 P.2d 1153 (App. 1980); Restatement (Second) of Conflicts § 6, comment c. Furthermore, since airplane accidents are not planned, these considerations are largely irrelevant. Cf. Gordon v. Kramer, supra (consideration of predictability and uniformity irrelevant to unplanned automobile accidents).

In resolving the factual issues on wrongful death damages, the jury is capable of applying Arizona or Colorado wrongful death damage principles with about equal ease. See Wendelken v. Superior Court, supra; Gordon v. Kramer, supra.

Protection of justified expectations also is of little importance in this case. Since airplane crash accidents are unanticipated negligent acts, it is not likely that either party acted with the consequences of his conduct in mind or the law to be applied should a dispute arise out of such negligent conduct. Additionally, Sun West did fly over New Mexico and other states which did not limit wrongful death damages, and therefore, should have expected that at some time it might be subject to the laws of those states and face large verdicts against it. Accordingly, Sun West could have protected itself. See Griffith v. United Air Lines, Inc., supra.

The three last considerations deal with policy: the basic policies underlying the particular field of law involved, here tort law, and the relevant policies of the forum state, Arizona, and other interested states, Colorado, New Mexico and Texas.

The basic policies underlying tort law are to provide compensation for the injured victims, and to deter intentional and deliberate tortious conduct by imposing punitive damages. Prosser & Keeton on Torts, § 2 (5th Ed. 1984). Both Arizona and Colorado provide compensation for the injured victims, consistent with basic tort law. Only Arizona, however, allows punitive damages to deter similar future conduct. [47] Cassel v. Schacht, 140 Ariz. 495, 683 P.2d 294 (1984). Thus, basic tort law is better fostered by applying Arizona law.

In considering the relevant policies of Arizona and Colorado, the laws of both states differ significantly. Arizona has a strong policy interest in fully compensating injured plaintiffs to make them whole. Thus, Arizona allows unlimited recovery for actual damages, expenses for past and prospective medical care, past and prospective pain and suffering, lost earnings, and diminished earning capacity. Wendelken, supra; see also Standard Oil Co. v. Shields, 58 Ariz. 239, 119 P.2d 116 (1941); Allen v. Devereaux, 5 Ariz. App. 323, 426 P.2d 659 (1967); RAJI Negligence 10. The policy of fully compensating an injured plaintiff is embodied in our Constitution, Art. 2, § 31, which reads:

"No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person."

Cf. Griffith v. United Air Lines, Inc. supra, (strong interest in compensating plaintiff fully is embodied in constitution of Pennsylvania). Thus, Arizona has a strong interest in compensating plaintiff for her injuries because plaintiff is a domiciliary and also because compensation helps injured plaintiffs make their medical bill payments to Arizona medical providers, preventing them from becoming wards of the state. See Wendelken, supra.

Colorado limits compensatory damages for wrongful death to plaintiff's net pecuniary loss. Espinoza v. O'Dell, 633 P.2d 455, 464 (Colo. 1981); Herbertson v. Russell, 150 Colo. 110, 371 P.2d 422, 425-26 (1962). This limitation prevents the jury from awarding speculative damages and more importantly, protects Colorado defendants from large verdicts. See Note, Blind Imitation of the Past — Analysis of Pecuniary Damages in Wrongful Death Actions, 49 Den.L.J. 99 (1972); See also Griffith v. United Air Lines, Inc., supra. As noted above, however, defendant Sun West Airlines is domiciled in Arizona with both its principal place of business and corporate offices there. Colorado's policy of limited liability is not fostered where defendant is not a resident of Colorado. Thus, Arizona's interest in compensation is stronger than Colorado's.

As to punitive damages, Arizona permits recovery of punitive damages in wrongful death actions. Boies v. Cole, 99 Ariz. 198, 407 P.2d 917 (1965). The purpose of allowing punitive damages is to punish defendant for his conduct and deter defendant or others from engaging in similar conduct in the future. Cassel v. Schacht, supra. Since Sun West is incorporated and has its principal place of business in Arizona, Arizona has a strong interest in assuring that one of its domiciliaries does not engage in gross, wanton, malicious or oppressive conduct.

On the other hand, Colorado does not permit punitive damages in a wrongful death action. See Colorado Rev.Statutes § 13-21-203 (1973); Herbertson v. Russell, supra. In interpreting the language of its wrongful death statute, Colorado courts determined that the general assembly had not authorized exemplary damages by the language employed in the statute. Moffatt v. Tenney, supra. The public policy behind such a denial is not clear. Perhaps it was to protect Colorado corporate defendants from excess liability. If so, since Sun West is domiciled in Arizona, Colorado has no interest in protecting an Arizona defendant. In any case, there does not appear to be a strong policy against punitive damages in Colorado because such damages are allowed in other tort actions. Cf. Short v. Downs, 36 Colo. App. 109, 537 P.2d 754 (1975) (medical malpractice); McNeill v. Allen, 35 Colo. App. 317, 534 P.2d 813 (1975); Barnes v. Lehman, 118 Colo. 161, 193 P.2d 273 (1948) (personal assault and battery). Since this case involves an Arizona corporate defendant causing injury to an Arizona domiciliary, Arizona has the dominant interest in controlling Sun West's conduct.

Our last probe into public policy considerations concerns the policies of Texas and [48] New Mexico relating to compensatory and punitive damages.

Texas, like Arizona, allows recovery for intangible personal losses. See Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex. 1983) (recovery of loss of society and companionship and damages for mental anguish for death of minor child allowed); Continental Bus System, Inc. v. Biggers, 322 S.W.2d 1 (Tex.Civ.App. 1959) (loss of parental care, guidance, training compensable). Thus, the policies underlying wrongful death statutes relating to compensatory damages in Arizona and Texas do not differ.

The New Mexico wrongful death statute permits compensatory damages beyond pecuniary loss, see Stang v. Hertz Corp., 81 N.M. 348, 467 P.2d 14 (1970) (substantial damages recoverable without proof of pecuniary loss); Baca v. Baca, 81 N.M. 734, 472 P.2d 997 (App. 1970), (accord), although not intangibles such as loss of society. Wilson v. Wylie, 86 N.M. 9, 518 P.2d 1213 (App. 1973). Thus New Mexico goes beyond Colorado pecuniary loss limitations and allows awards involving intangibles but not to the extent of Arizona. In order to foster the policy of New Mexico, Arizona law should be applied to avoid undercompensating the New Mexico plaintiff.

Both New Mexico and Texas permit recovery of punitive damages in wrongful death cases. N.M. Stat. Ann. § 41-2-3 (1978); Tex.Stat.Ann. art. 4673 (Vernon's 1952). Thus, both of these states support use of Arizona law on punitive damages.

After considering the relevant factors and the interest of both states, we conclude that Arizona has the greatest interest in the determination of this case. Although the injury and relationship between the litigants centered in Colorado, the value of these contacts is minimal in this case. The domicile of the litigants, when considered with the policy behind both Colorado and Arizona damage laws, points to application of Arizona law. This determination best protects our citizens and those of New Mexico and Texas from wrongful conduct by another of our citizens, without affecting trade and travel between Arizona and Colorado.

The petitioners' prayer for relief is granted. The portion of the order of the respondent trial judge dated January 31, 1985, striking petitioners' claim for punitive damages for wrongful death and limiting petitioners' compensatory damages to net pecuniary loss is vacated, and the court is directed to grant the motion of petitioners for summary judgment that Arizona law applies to the action below.

HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.

[1] Because our choice of law analysis could result in one state having the greater interest in compensatory damages and the other punitive damages, we will apply the doctrine of depecage in resolving this case which allows us to apply different state laws to different issues. See, e.g., In re Air Crash Near Chicago, 644 F.2d 594, 611 (7th Cir.), cert. denied, 454 U.S. 878, 102 S.Ct. 358, 70 L.Ed.2d 187 (1981) (approving concept of "depecage"); Depecage: A Common Phenomenon In Choice of Law, 73 Colum.L.Rev. 58, 59-60 (1973) (depecage endorsed); Leflar, American Conflicts Law § 109, 221-22 (3rd ed. 1977); Wilde, Depecage in the Choice of Tort Law, 41 S.Cal.L.Rev. 329 (1968).

[2] Neither plaintiffs nor defendant argue that New Mexico or Texas wrongful death damage law should apply to this action, but instead all parties limited their arguments to Colorado and Arizona. Therefore, we will discuss all contacts in Arizona and Colorado and only those contacts of New Mexico or Texas when such contacts would favor application of Arizona or Colorado law. We need not decide whether in future cases different states' laws could be applied to different plaintiffs in the same case.

[3] Joyce Branham purchased her ticket in Colorado and Mary Peters purchased her ticket in New Mexico.

[4] The only interest of the state of injury would be in the compensation of those who rendered medical aid and other assistance to the injured parties. Where immediate death occurs, however, the state has no such interest. Griffith v. United Airlines, supra, 203 A.2d at 807.

[54] Lee L. Piovarcy, David Wade, Scott T. Beall, Martin, Tate, Morrow & Marston, P.C., Memphis, for plaintiffs/appellants.

John R. Cannon, Jr., Karen R. Renneisen, Hardison Law Firm, Memphis, for defendant/appellee.

OPINION

ANDERSON, Justice.

In this case, we are asked to decide whether the lex loci delicti conflicts-of-law doctrine should continue to be followed in tort cases in Tennessee. The decedent, Grady Hataway, died as a result of complications from a scuba dive in an Arkansas rock quarry. The dive took place as part of a scuba class taught at Memphis State University by the defendant, Robert McKinley. Although both the decedent and the defendant were life-long residents of Tennessee, the trial court followed previous decisions of this Court and held that Arkansas law governed the plaintiffs' wrongful death action under the lex loci delicti doctrine. The trial court's decision on this issue was affirmed by the Court of Appeals.

Our review of the background and modern development of conflicts of law rules convinces us that the lex loci delicti doctrine should be abandoned. Today we announce a new rule — the "most significant relationship" approach of the Restatement (Second) of Conflict of Laws (1971). Applying the "most significant relationship" approach to the facts of this case, we find that the State of Tennessee has a more significant relationship to the occurrence and the parties, and that Tennessee law should govern the action. Accordingly, we reverse the Court of Appeals' decision applying Arkansas law to this case.

BACKGROUND

On October 20, 1984, Grady Hataway died as a result of injuries he sustained during a scuba dive in a North Little Rock, Arkansas, rock quarry. The dive was supervised by the defendant, Robert W. McKinley, and conducted as part of a scuba class taught at Memphis State University. As a result of Hataway's death, his parents filed this wrongful death action in the Shelby County Circuit Court.

The trial court granted the defendant's motion to apply Arkansas law to the plaintiffs' wrongful death claims, based on Tennessee's lex loci rule, and the plaintiffs were allowed to amend their complaint to conform to Arkansas law. Thereafter, the case was tried before a jury on the basis of Arkansas's wrongful death statute, Ark. Code Ann. § 16-62-102 (Michie 1987), and Arkansas's comparative fault statute, Ark. Code Ann. § 16-64-122 (Michie 1987).

After a lengthy trial, the jury returned a verdict for the defendant. The plaintiffs appealed, and the Court of Appeals reversed, holding that although Arkansas law was correctly applied, the trial court had erred by excluding from evidence defendant's admission. From the Court of [55] Appeals' decision, both parties appealed to this Court. We granted the plaintiffs' application for permission to appeal limited to the issue of whether the trial court correctly applied Arkansas law to this case.

LEX LOCI DELICTI

The first issue we address on this appeal is whether there is a conflict between Arkansas and Tennessee law. Recovery by the plaintiffs under either Arkansas or Tennessee law is predicated on negligence, which is the failure to use reasonable and ordinary care under the circumstances which proximately causes the plaintiff's injuries. See Bowie v. Missouri Pacific Railroad Co., 262 Ark. 793, 561 S.W.2d 314 (1978); Lindsey v. Miami Dev. Corp., 689 S.W.2d 856 (Tenn. 1985). However, once the negligence of a defendant has been demonstrated, there is a major difference between the defenses that can be asserted by a defendant under Arkansas and Tennessee tort law.

Arkansas is a comparative fault state, which means that an Arkansas plaintiff's recovery is reduced by the amount of his fault. Ark. Code Ann. § 16-64-122 (Michie 1987). Under Arkansas law, a plaintiff is not barred from recovering damages from a defendant unless his fault is equal to or greater than the defendant's fault. Id. Under Tennessee law, however, a plaintiff is completely barred from recovering damages if he was contributorially negligent, even if his negligence was of a lesser degree than the defendant's. Arnold v. Hayslett, 655 S.W.2d 941, 945 (Tenn. 1983). The only way a plaintiff can recover damages in Tennessee despite his contributory fault is if a jury finds that his conduct was too remote in time and place to be considered a proximate cause of his injuries. Id.

In addition to the contrast in negligence law, there is a difference between the wrongful death statutes of Arkansas and Tennessee. Arkansas' wrongful death statute allows recovery "for the pecuniary injuries ... and mental anguish resulting from the death, to the surviving spouse and next of kin of the deceased person." Ark. Code Ann. § 16-62-102(f) (Michie 1987) (emphasis added). Tennessee's wrongful death statute, on the other hand, allows recovery "for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received." Tenn. Code Ann. § 20-5-113 (1980) (emphasis added).

Given the difference between comparative fault in Arkansas and contributory negligence in Tennessee, as well as the difference between the wrongful death statutes, we conclude that there is a conflict between Arkansas and Tennessee law which is a necessary predicate to deciding which state's law should govern this wrongful death action.

The doctrine of lex loci delicti has been the rule in Tennessee for over 100 years. See East Tennessee, V. & G.R. Co. v. Lewis, 89 Tenn. 235, 14 S.W. 603 (1890). Under this doctrine, a Tennessee court will determine the substantive rights of an injured party according to the law of the state where the injury occurred. Winters v. Maxey, 481 S.W.2d 755, 756 (Tenn. 1972). However, there is a public policy exception to the doctrine and the law of Tennessee will be applied "where the law of the jurisdiction where the tort occurred is against good morals or natural justice, or for some other reason, its enforcement would be prejudicial to the general interests of our citizens." Id. (The majority in Winters v. Maxey, decided the public policy exception did not apply to an Alabama guest statute which requires a showing of willful or wanton conduct before a guest passenger can recover.)

The plaintiffs argue that the doctrine of lex loci delicti should be abandoned by this Court because it is obsolete, unjust, and arbitrary. Adherence to the doctrine, the plaintiffs say, often leads to application of the law of a state that has no interest in the controversy or no contact with the parties other than the fortuitous circumstance that the injury occurred in [56] that state. The defendant, on the other hand, maintains that we should retain the doctrine because it promotes certainty, predictability, and uniformity in conflicts cases. According to the defendant, the rationale of Winters v. Maxey is still viable today, because the jurisdictions abandoning lex loci delicti have suffered from increased litigation due to the inconsistent results reached under modern choice of law theories.

In Winters v. Maxey, supra, this Court was squarely confronted with the question of whether the lex loci delicti doctrine should be abandoned in Tennessee. After reviewing cases that had adopted and applied a modern "dominant contacts" rule, the Winters court retained the old rule because it found that the modern theories do not "provide any `uniform common law of conflicts' to take the place of the uniform rule of lex loci delicti." Winters, 481 S.W.2d at 758. Justice Humphrey's dissent recognized, however, that change was inevitable.

[W]hile I think the adoption of a general rule such as that in Restatement is inevitable as our society grows more mobile and the interest of the State in its citizens ever increases, I am content, for the present, to base my disagreement with the majority on its failure to recognize that the Alabama guest statute is contrary to justice, is contrary to good morals, and is contrary to the policy of this State....

Id. at 760.

At the time Winters was decided, lex loci was still the majority rule, although 15 states and the District of Columbia had repudiated lex loci delicti in favor of an "analysis of contacts" rule. Id. Since the Winters decision, however, numerous states have abandoned lex loci in favor of a more modern theory, just as Justice Humphrey predicted.

Our review of the cases from other jurisdictions reveals that an ever shrinking number of states (15) continue to follow lex loci delicti. These states include Alabama, Georgia, Kansas, Maryland, Montana, Nevada, New Mexico, North Carolina, South Carolina, South Dakota, Utah, Vermont, Virginia, West Virginia, and Wyoming. See Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819 (Ala. 1991); Risdon Enterprises, Inc. v. Colemill Enterprises, Inc., 172 Ga. App. 902, 324 S.E.2d 738 (1984); Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985); Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983); Lewis v. Reader's Digest Ass'n, Inc., 162 Mont. 401, 512 P.2d 702 (1973); Karlsen v. Jack, 80 Nev. 201, 391 P.2d 319 (1964); First Nat'l Bank in Albuquerque v. Benson, 89 N.M. 481, 553 P.2d 1288, cert. denied, 90 N.M. 7, 558 P.2d 619 (1976); Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988); Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303 (1964); Owen v. Owen, 444 N.W.2d 710 (S.D. 1989); Velasquez v. Greyhound Lines, Inc., 12 Utah 2d 379, 366 P.2d 989 (1961); Goldman v. Beaudry, 122 Vt. 299, 170 A.2d 636 (1961); McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979); Paul v. Nat'l Life, 177 W. Va. 427, 352 S.E.2d 550 (1986); Ball v. Ball, 73 Wyo. 29, 269 P.2d 302 (1954). It follows that lex loci delicti is no longer the majority rule.

In the few jurisdictions that have recently addressed the issue and decided to retain lex loci, the reasoning has been that the modern theories have not brought certainty or uniformity to the law. See, e.g., Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819 (Ala. 1991). They argue that the primary advantage of lex loci is that "[i]t is an objective and convenient approach which continues to afford certainty, uniformity, and predictability of outcome in choice of law decisions." Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849, 854 (1988).

The answer to these arguments, however, is that lex loci, in its search for uniformity of result and ease of application, ignored the very substantial interests of the forum state in applying its own laws. As a result, courts created exceptions to the rule, such as the public policy exception, or circumvented the rule's operation by strained characterizations, such as describing substantive laws as procedural rules. These actions undermined certainty, uniformity, and predictability, the supposed [57] virtues of lex loci delicti. Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex. 1979).

We agree with the great majority of other jurisdictions that the doctrine of lex loci is outmoded because of changes in society, causing a consequential development of modern law.^[1] The lex loci doctrine had its conceptual foundation in the common-law vested rights doctrine, which was founded on respect for a state's territorial sanctity. See Traveler's Indemnity Co. v. Lake, 594 A.2d 38 (Del. 1991), Winters, supra, 481 S.W.2d at 756. We observe that in today's modern industrial world, the vested rights theory, with its emphasis on territorial boundaries, has little relevance. "State and national boundaries are of less significance today by reason of the increased mobility of our population and of the increasing tendency of men to conduct their affairs across boundary lines." Restatement (Second) of Conflicts of Law, ch. 7 at 413 (1971) (Introductory Note). See also Gutierrez v. Collins, 583 S.W.2d at 317 (Tex. 1979).

Having concluded that the doctrine of lex loci delicti is outmoded and increasingly irrelevant, we review the more modern rules adopted in other states in order to determine which is the better choice of law theory.

A majority of states abandoning lex loci have adopted the approach of the Restatement (Second) of Conflict of Laws (1971). Under this approach, a court applies the "law of the state where the injury occurred ... unless, with respect to the particular issue, some other state has a more significant relationship ... to the occurrence and the parties." Restatement (Second), §§ 146 and 175. At this writing, 21 states follow the Restatement (Second)'s "most significant relationship" approach, including Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, Oregon, Texas, and Washington. See Ehredt v. DeHavilland Aircraft Co. of Canada Ltd., 705 P.2d 446 (Alaska 1985); Bryant v. Silverman, 146 Ariz. 41, 703 P.2d 1190 (1985); First Nat'l Bank in Fort Collins v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986) (R.2d where lex loci produces arbitrary or irrational results); Traveler's Indemnity Co. v. Lake, 594 A.2d 38 (Del. 1991); Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980); Johnson v. Pischke, 108 Idaho 397, 700 P.2d 19 (1985); Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071 (Ind. 1987) (R.2d where the place of the tort is an insignificant contact); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968); Lee v. Ford Motor Co., 457 So.2d 193 (La. Ct. App. 1984), cert. denied, 461 So.2d 319 (La. 1984); Adams v. Buffalo Forge Co., 443 A.2d 932 (Me. 1982); Pevoski v. Pevoski, 371 Mass. 358, 358 N.E.2d 416 (1976) (lex loci unless another state has a more substantial interest); Mitchell v. Craft, 211 So.2d 509 (Miss. 1969) (lex loci unless another state has a more significant relationship); Kennedy v. Dixon, 439 S.W.2d 173 (Mo. 1969); Harper v. Silva, 224 Neb. 645, 399 N.W.2d 826 (1987) (lex loci unless another state has a more significant relationship); Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 474 N.E.2d 286 (1984); Brickner v. Gooden, 525 P.2d 632 (Okla. 1974); Casey v. Manson Constr. & Eng'g Co., 247 Or. 274, 428 P.2d 898 (1967); Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979); and Johnson v. Spider Staging Corp., 87 Wash.2d 577, 555 P.2d 997 (1976).

The primary advantage of the Restatement (Second) approach is that it utilizes a flexible mixture of the current thinking on choice of law. Gregory E. Smith, Choice of Law in the United States, 31 Hastings L.J. 1041, 1046 (1987). Some, however, have criticized the Restatement (Second) approach [58] because of its complexity. Id. The approach primarily advocates a governmental interest analysis, but many courts have merely counted contacts rather than engaging in an analysis of the interests and policies listed in the Restatement. Id.

The remaining states and the District of Columbia follow various alternative theories. Arkansas, Minnesota, New Hampshire, Rhode Island, and Wisconsin employ a theory propounded by Professor Robert Leflar in his law review article entitled, Choice Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966). Under this theory, a court examines the following five "choice influencing considerations" to determine which state's law should apply: (1) predictability of result, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interest, and (5) the application of the better rule of law. See Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977) (with emphasis on governmental interest and the better choice of law); Bigelow v. Halloran, 313 N.W.2d 10 (Minn. 1981) (with emphasis in tort cases on governmental interest and the better rule of law); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917 (1968); and Hunker v. Royal Indem. Co., 57 Wis.2d 588, 204 N.W.2d 897 (1973).

The major criticism of Professor Leflar's theory is that it is "plagued by excessive forum favoritism." Smith, Choice of Law, 31 Hastings L.J. at 1049. The theory leads to forum favoritism because the third and fourth factors almost always point to the forum law, and judges rarely consider their state's own laws to be inferior to those of another state under the fifth factor. Id. In addition, the first two factors are usually irrelevant in torts cases, further emphasizing the last three, pro-forum factors. Id.

Another conflicts theory followed in some states is Professor Brainerd Currie's "governmental interest analysis." This theory requires a court to first identify the specific law in each state touching upon the disputed legal issue. Then, a court must determine the precise policies which the respective laws were designed to augment. Finally, a court examines each jurisdiction's relationship with the litigation and determines whether or not the application of a particular state's law would be consistent with the purposes identified as supporting that law. Gregory E. Smith, Choice of Law in the United States, 31 Hastings L.J. 1041, 1047 (1987). See also B. Currie, Selected Essays on the Conflict of Laws (1963).

California, the District of Columbia, Hawaii, New Jersey, and New York apply a "governmental interest" analysis similar to that developed by Professor Currie. See Bernhard v. Harrah's Club, 16 Cal.3d 313, 546 P.2d 719, 128 Cal. Rptr. 215 (1976); Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268 (D.C.App. 1987); Lewis v. Lewis, 69 Haw. 497, 748 P.2d 1362 (1988) (flexible approach with emphasis on deciding which state would have the strongest interest in seeing its laws applied to the particular case); Mellk v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967); and Schultz v. Boy Scouts of America, 65 N.Y.2d 189, 480 N.E.2d 679, 491 N.Y.S.2d 90 (1985) (although New York began with a combination of a "grouping of contacts" and "dominant interest" analysis, see Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963), the courts of New York have focused now on an "interest" analysis similar to Professor Currie's).

The advantage of Professor Currie's "interest analysis" is that it is sensitive to the substantive laws being considered. Smith, Choice of Law, 31 Hastings L.J. at 1048. The basic disadvantage of the theory, however, is that it fails to adequately deal with true conflicts, when the purposes behind either law would be served by its application. Id. Another disadvantage is that the theory can be manipulated easily by identifying alternative governmental interests of a forum law, thereby leading to forum favoritism. Id.

Another conflicts theory is lex fori, which states that the law of the forum governs the rights and liabilities of the [59] parties. Kentucky and Michigan follow a variation of the lex fori theory. See Foster v. Leggett, 484 S.W.2d 827 (Ky. 1972) (apply the law of the forum if the forum state has "enough" contacts); Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292 (1987) (lex fori unless another state has a more significant interest). The primary advantage of lex fori is that it is easy to apply, while the principal disadvantage is that it fails to consider the policies and interests represented by the substantive laws being considered.

The final two states, Pennsylvania and North Dakota, combine theories to resolve conflicts questions in tort cases. Pennsylvania approaches conflicts questions by applying a combination of the Restatement (Second) and "governmental interest" theories. See Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964). North Dakota combines the grouping of contacts or dominant interest approach with Leflar's choice-influencing considerations. See Issendorf v. Olson, 194 N.W.2d 750 (N.D. 1972).

Our review of the various conflicts approaches persuades us that the better-reasoned rule for resolving conflicts questions in tort cases is the approach of the Restatement (Second).^[2] We think the approach of the Restatement (Second) is superior for several reasons. The Restatement provides that the law of the state where the injury occurred will be applied unless some other state has a more significant relationship to the litigation. We conclude this is the more logical position because generally the law of the state where the injury occurred will have the most significant relationship to the litigation. In addition, the Restatement is easier to apply in difficult cases because it provides a "default" rule whereby trial courts can apply the law of the place where the injury occurred when each state has an almost equal relationship to the litigation. Moreover, the Restatement approach allows a court to apply the law of a state that legitimately has a stronger interest in the controversy, as opposed to a state that may have no interest at all in the proceedings.

Accordingly, we adopt the "most significant relationship" approach of §§ 6, 145, 146, and 175 of the Restatement (Second) of Conflict of Laws (1971), which provides:

§ 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.^[3]

(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 domicile, residence, nationality, place of incorporation and place of business of the parties,

(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.

[60] § 146. Personal Injuries

In an action for 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.

§ 175. Right of Action for Death

In an action for wrongful death, 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.

The rule we adopt today shall be applied to (1) all cases tried or retried after the date of this opinion, and (2) all cases on appeal in which the conflicts of law issue was raised on a timely basis in the litigation.

Having adopted the "most significant relationship" approach of the Restatement (Second), we return to the facts of this case to determine whether Arkansas or Tennessee law should be applied.

The only contact the parties had with the State of Arkansas was that the injury occurred in that state. Both the decedent and the defendant were life-long residents of Tennessee and neither owned any property in Arkansas. The parties' relationship was centered in Tennessee because the relationship was formed and continued as a result of the decedent's participation in the scuba class taught at Memphis State by the defendant. We think the fact that the injury occurred in Arkansas was merely a fortuitous circumstance, and that the State of Arkansas has no interest in applying its laws to this dispute between Tennessee residents. Under the facts here presented, we conclude that although the injury occurred in Arkansas, the State of Tennessee has a more significant relationship to the occurrence and the parties under the factors and contacts set out in §§ 6 and 145 of Restatement (Second).

Accordingly, the Court of Appeals is reversed, and this case is remanded to the trial court with instructions that the law of Tennessee should be applied to the plaintiffs' claims for wrongful death. The costs of this appeal are taxed to the defendant-appellee.

REID, C.J., and DROWOTA, O'BRIEN and DAUGHTREY, JJ., concur.

[1] "When the doctrine of lex loci delicti was first established in the mid-nineteenth century, conditions were such that people only occasionally crossed state boundaries. Under those circumstances, there was legitimacy in a rule which presumed that persons changing jurisdictions would be aware of the different duties and obligations they were incurring when they made the interstate journey." First Nat'l Bank in Ft. Collins v. Rostek, 182 Colo. 437, 514 P.2d 314, 316 (1973).

[2] "[The Restatement (Second) of Conflict of Laws, § 145] is the most desirable model currently available for use as a framework for making choice-of-law decisions." Westbrook, A Survey and Evaluation of Competing Choice-of-Law Methodologies: The Case for Eclecticism, 40 Mo.L.Rev. 407, 412 (1975).

[3]§ 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.

(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.

John M. Regan for appellant.

Ellsworth Van Graafeiland for respondent.

Chief Judge DESMOND and Judges DYE, BURKE and FOSTER concur with Judge FULD; Judge VAN VOORHIS dissents in an opinion in which Judge SCILEPPI concurs.

[476] FULD, J.

On Friday, September 16, 1960, Miss Georgia Babcock and her friends, Mr. and Mrs. William Jackson, all residents of Rochester, left that city in Mr. Jackson's automobile, Miss Babcock as guest, for a week-end trip to Canada. Some hours later, as Mr. Jackson was driving in the Province of Ontario, he apparently lost control of the car; it went off the highway into an adjacent stone wall, and Miss Babcock was seriously injured. Upon her return to this State, she brought [477] the present action against William Jackson, alleging negligence on his part in operating his automobile.^[1]

At the time of the accident, there was in force in Ontario a statute providing that "the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in * * * the motor vehicle" (Highway Traffic Act of Province of Ontario [Ontario Rev. Stat. (1960), ch. 172], § 105, subd. [2]). Even though no such bar is recognized under this State's substantive law of torts (see, e.g., Higgins v. Mason, 255 N.Y. 104, 108; Nelson v. Nygren, 259 N.Y. 71), the defendant moved to dismiss the complaint on the ground that the law of the place where the accident occurred governs and that Ontario's guest statute bars recovery. The court at Special Term, agreeing with the defendant, granted the motion and the Appellate Division, over a strong dissent by Justice HALPERN, affirmed the judgment of dismissal without opinion.

The question presented is simply drawn. Shall the law of the place of the tort^[2] invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?

The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court (see, e.g., Poplar v. Bourjois, Inc., 298 N.Y. 62, 66; Kaufman v. American Youth Hostels, 5 N Y 2d 1016, modfg. 6 A D 2d 223), has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort. (See Goodrich, Conflict of Laws [3d ed., 1949], p. 260; Leflar, The Law of Conflict of Laws [1959], p. 207; Stumberg, Principles of Conflict of Laws [2d ed., 1951], p. 182.) It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the [478] jurisdiction where the injury occurred and depends for its existence and extent solely on such law. (See Hancock, Torts in the Conflict of Laws [1942], pp. 30-36; Reese, The Ever Changing Rules of Choice of Law, Nederlands Tijdschrift Voor Internationaal Recht [1962], 389.) Although espoused by such great figures as Justice HOLMES (see Slater v. Mexican Nat. R. R. Co., 194 U. S. 120) and Professor Beale (2 Conflict of Laws [1935], pp. 1286-1292), the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act.^[3] "The vice of the vested rights theory", it has been aptly stated, "is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved". (Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale L. J. 468, 482-483.) More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. It is for this very reason that, despite the advantages of certainty, ease of application and predictability which it affords (see Cheatham and Reese, Choice of the Applicable Law, 52 Col. L. Rev. 959, 976), there has in recent years been increasing criticism of the traditional rule by commentators^[4] and a judicial trend towards its abandonment or modification.^[5]

[479] Significantly, it was dissatisfaction with "the mechanical formulae of the conflicts of law" (Vanston Committee v. Green, 329 U. S. 156, 162) which led to judicial departure from similarly inflexible choice of law rules in the field of contracts, grounded, like the torts rule, on the vested rights doctrine. According to those traditional rules, matters bearing upon the execution, interpretation and validity of a contract were determinable by the internal law of the place where the contract was made, while matters connected with their performance were regulated by the internal law of the place where the contract was to be performed. (See Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 141; see, also, Restatement, Conflict of Laws, §§ 332, 358; Goodrich, Conflict of Laws [3d ed., 1949], pp. 342-343.)

In Auten v. Auten (308 N.Y. 155), however, this court abandoned such rules and applied what has been termed the "center of gravity" or "grouping of contacts" theory of the conflict of laws. "Under this theory," we declared in the Auten case, "the courts, instead of regarding as conclusive the parties' intention or the place of making or performance, lay emphasis rather upon the law of the place `which has the most significant contacts with the matter in dispute'" (308 N. Y., at p. 160). The "center of gravity" rule of Auten has not only been applied in other cases in this State,^[6] as well as in other jurisdictions,^[7] but has supplanted the prior rigid and set contract rules in the most current draft of the Restatement of Conflict of Laws. (See Restatement, Second, Conflict of Laws, § 332b [Tentative Draft No. 6, 1960].)

Realization of the unjust and anomalous results which may ensue from application of the traditional rule in tort cases has also prompted judicial search for a more satisfactory alternative in that area. In the much discussed case of Kilberg v. Northeast Airlines (9 N Y 2d 34), this court declined to apply the law of the place of the tort as respects the issue of the quantum of the recovery in a death action arising out of an airplane crash, [480] where the decedent had been a New York resident and his relationship with the defendant airline had originated in this State. In his opinion for the court, Chief Judge DESMOND described, with force and logic, the shortcomings of the traditional rule (9 N Y 2d, at p. 39):

"Modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. * * * An air traveler from New York may in a flight of a few hours' duration pass through * * * commonwealths [limiting death damage awards]. His plane may meet with disaster in a State he never intended to cross but into which the plane has flown because of bad weather or other unexpected developments, or an airplane's catastrophic descent may begin in one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State's people against unfair and anachronistic treatment of the lawsuits which result from these disasters."

The emphasis in Kilberg was plainly that the merely fortuitous circumstance that the wrong and injury occurred in Massachusetts did not give that State a controlling concern or interest in the amount of the tort recovery as against the competing interest of New York in providing its residents or users of transportation facilities there originating with full compensation for wrongful death. Although the Kilberg case did not expressly adopt the "center of gravity" theory, its weighing of the contacts or interests of the respective jurisdictions to determine their bearing on the issue of the extent of the recovery is consistent with that approach. (See Leflar, Conflict of Laws, 1961 Ann. Sur. Amer. Law, 29, 45.)

The same judicial disposition is also reflected in a variety of other decisions, some of recent date, others of earlier origin, relating to workmen's compensation,^[8] tortious occurrences arising [481] out of a contract,^[9] issues affecting the survival of a tort right of action^[10] and intrafamilial immunity from tort^[11] and situations involving a form of statutory liability.^[12] These numerous cases differ in many ways but they are all similar in two important respects. First, by one rationale or another, they rejected the inexorable application of the law of the place of the tort where that place has no reasonable or relevant interest in the particular issue involved. And, second, in each of these cases the courts, after examining the particular circumstances presented, applied the law of some jurisdiction other than the place of the tort because it had a more compelling interest in the application of its law to the legal issue involved.

The "center of gravity" or "grouping of contacts" doctrine adopted by this court in conflicts cases involving contracts impresses us as likewise affording the appropriate approach for accommodating the competing interests in tort cases with multi-State contacts. Justice, fairness and "the best practical result" (Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 141, supra) may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation. The merit of such a rule is that "it gives to the place `having the most interest in the problem' paramount control over the legal issues arising out of a particular factual context" and thereby allows the forum to apply "the policy of the jurisdiction `most [482] intimately concerned with the outcome of [the] particular litigation.'" (Auten v. Auten, 308 N.Y. 155, 161, supra.)

Such, indeed, is the approach adopted in the most recent revision of the Conflict of Laws Restatement in the field of torts. According to the principles there set out, "The local law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort" (Restatement, Second, Conflict of Laws, § 379[1]; also Introductory Note to Topic 1 of Chapter 9, p. 3 [Tentative Draft No. 8, 1963]), and the relative importance of the relationships or contacts of the respective jurisdictions is to be evaluated in the light of "the issues, the character of the tort and the relevant purposes of the tort rules involved" (§ 379[2], [3]).

Comparison of the relative "contacts" and "interests" of New York and Ontario in this litigation, vis-a-vis the issue here presented, makes it clear that the concern of New York is unquestionably the greater and more direct and that the interest of Ontario is at best minimal. The present action involves injuries sustained by a New York guest as the result of the negligence of a New York host in the operation of an automobile, garaged, licensed and undoubtedly insured in New York, in the course of a week-end journey which began and was to end there. In sharp contrast, Ontario's sole relationship with the occurrence is the purely adventitious circumstance that the accident occurred there.

New York's policy of requiring a tort-feasor to compensate his guest for injuries caused by his negligence cannot be doubted — as attested by the fact that the Legislature of this State has repeatedly refused to enact a statute denying or limiting recovery in such cases (see, e.g., 1930 Sen. Int. No. 339, Pr. No. 349; 1935 Sen. Int. No. 168, Pr. No. 170; 1960 Sen. Int. No. 3662, Pr. No. 3967) — and our courts have neither reason nor warrant for departing from that policy simply because the accident, solely affecting New York residents and arising out of the operation of a New York based automobile, happened beyond its borders. Per contra, Ontario has no conceivable interest in denying a remedy to a New York guest against his New York host for injuries suffered in Ontario by reason of conduct which was tortious under Ontario law. The object of Ontario's guest statute, it has been said, is "to prevent the fraudulent assertion [483] of claims by passengers, in collusion with the drivers, against insurance companies" (Survey of Canadian Legislation, 1 U. Toronto L. J. 358, 366) and, quite obviously, the fraudulent claims intended to be prevented by the statute are those asserted against Ontario defendants and their insurance carriers, not New York defendants and their insurance carriers. Whether New York defendants are imposed upon or their insurers defrauded by a New York plaintiff is scarcely a valid legislative concern of Ontario simply because the accident occurred there, any more so than if the accident had happened in some other jurisdiction.

It is hardly necessary to say that Ontario's interest is quite different from what it would have been had the issue related to the manner in which the defendant had been driving his car at the time of the accident. Where the defendant's exercise of due care in the operation of his automobile is in issue, the jurisdiction in which the allegedly wrongful conduct occurred will usually have a predominant, if not exclusive, concern. In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place.

The issue here, however, is not whether the defendant offended against a rule of the road prescribed by Ontario for motorists generally or whether he violated some standard of conduct imposed by that jurisdiction, but rather whether the plaintiff, because she was a guest in the defendant's automobile, is barred from recovering damages for a wrong concededly committed. As to that issue, it is New York, the place where the parties resided, where their guest-host relationship arose and where the trip began and was to end, rather than Ontario, the place of the fortuitous occurrence of the accident, which has the dominant contacts and the superior claim for application of its law. Although the rightness or wrongness of defendant's conduct may depend upon the law of the particular jurisdiction through which the automobile passes, the rights and liabilities of the parties which stem from their guest-host relationship should remain constant and not vary and shift as the automobile proceeds from place to place. Indeed, such a result, we note, [484] accords with "the interests of the host in procuring liability insurance adequate under the applicable law, and the interests of his insurer in reasonable calculability of the premium." (Ehrenzweig, Guest Statutes in the Conflict of Laws, 69 Yale L. J. 595, 603.)

Although the traditional rule has in the past been applied by this court in giving controlling effect to the guest statute of the foreign jurisdiction in which the accident occurred (see, e.g., Smith v. Clute, 277 N.Y. 407; Kerfoot v. Kelley, 294 N.Y. 288; Naphtali v. Lafazan, 8 N Y 2d 1097, affg. 8 A D 2d 22), it is not amiss to point out that the question here posed was neither raised nor considered in those cases and that the question has never been presented in so stark a manner as in the case before us with a statute so unique as Ontario's.^[13] Be that as it may, however, reconsideration of the inflexible traditional rule persuades us, as already indicated, that, in failing to take into account essential policy considerations and objectives, its application may lead to unjust and anomalous results. This being so, the rule, formulated as it was by the courts, should be discarded. (Cf. Bing v. Thunig, 2 N Y 2d 656, 667; Woods v. Lancet, 303 N.Y. 349, 355.)^[14]

In conclusion, then, there is no reason why all issues arising out of a tort claim must be resolved by reference to the law of the same jurisdiction. Where the issue involves standards of conduct, it is more than likely that it is the law of the place of the tort which will be controlling but the disposition of other issues must turn, as does the issue of the standard of conduct itself, on the law of the jurisdiction which has the strongest interest in the resolution of the particular issue presented.

[485] The judgment appealed from should be reversed, with costs, and the motion to dismiss the complaint denied.

VAN VOORHIS, J. (dissenting).

The decision about to be made of this appeal changes the established law of this State, one of the most recent decisions the other way being Kaufman v. American Youth Hostels (5 N Y 2d 1016), where all of the "significant contacts" were with New York State except the mountain which plaintiff's intestate was climbing when she met her death. The defense of immunity of a charitable corporation under the Oregon law, where the accident occurred, was inapplicable under the law of New York where the defendant corporation was organized and staffed, and plaintiff and his intestate resided. Nevertheless the court declined to strike that defense from the answer, based upon Oregon law. Concerning, as it did, solely the status of the defendant corporation, Kaufman v. American Youth Hostels presented a stronger case for the application of New York law than does the present. The case of Auten v. Auten (308 N.Y. 155), involving a separation agreement between English people and providing for the support of a wife and children to continue to live in England, accomplished no such revolution in the law as the present appeal. Auten v. Auten dealt with contracts, the agreement was held to be governed by the law of the country where it was mainly to be performed, which had previously been the law, and the salient expressions "center of gravity", "grouping of contacts", and similar catchwords were employed as a shorthand reference to the reconciliation of such rigid concepts in the conflict of laws as the formulae making applicable the place where the contract was signed or where it was to be performed — rules which themselves were occasionally in conflict with one another. In the course of the opinion it was stated that "even if we were not to place our emphasis on the law of the place with the most significant contacts, but were instead simply to apply the rule that matters of performance and breach are governed by the law of the place of performance, the same result would follow" (308 N. Y., p. 163). The decision in Auten v. Auten rationalized and rendered more workable the existing law of contracts. The name "grouping of contacts" was simply a label to identify the rationalization of existing decisions on the conflict of laws in [486] contract cases which were technically inconsistent, in some instances. The difference between the present case and Auten v. Auten is that Auten did not materially change the law, but sought to formulate what had previously been decided. The present case makes substantial changes in the law of torts. The expressions "center of gravity", "grouping of contacts," and "significant contacts" are catchwords which were not employed to define and are inadequate to define a principle of law, and were neither applied to nor are they applicable in the realm of torts.

Any idea is without foundation that cases such as the present render more uniform the laws of torts in the several States of the United States. Attempts to make the law or public policy of New York State prevail over the laws and policies of other States where citizens of New York State are concerned are simply a form of extraterritoriality which can be turned against us wherever actions are brought in the courts of New York which involve citizens of other States. This is no substitute for uniform State laws or for obtaining uniformity by covering the subject by Federal law. Undoubtedly ease of travel and communication, and the increase in interstate business have rendered more awkward discrepancies between the laws of the States in many respects. But this is not a condition to be cured by introducing or extending principles of extraterritoriality, as though we were living in the days of the Roman or British Empire, when the concepts were formed that the rights of a Roman or an Englishman were so significant that they must be enforced throughout the world even where they were otherwise unlikely to be honored by "lesser breeds without the law." Importing the principles of extraterritoriality into the conflicts of laws between the States of the United States can only make confusion worse confounded. If extraterritoriality is to be the criterion, what would happen, for example, in case of an automobile accident where some of the passengers came from or were picked up in States or countries where causes of action against the driver were prohibited, others where gross negligence needed to be shown, some, perhaps, from States where contributory negligence and others where comparative negligence prevailed? In the majority opinion it is said that "Where the defendant's exercise of due care in the operation of his automobile is in issue, the jurisdiction in which the allegedly wrongful conduct occurred [487] will usually have a predominant, if not exclusive, concern." This is hardly consistent with the statement in the footnote that gross negligence would not need to be established in an action by a passenger if the accident occurred in a State whose statute so required. If the status of the passenger as a New Yorker would prevent the operation of a statute in a sister State or neighboring country which granted immunity to the driver in suits by passengers, it is said that it would also prevent the operation of a statute which instead of granting immunity permits recovery only in case of gross negligence. There are passenger statutes or common-law decisions requiring gross negligence or its substantial equivalent to be shown in 29 States. One wonders what would happen if contributory negligence were eliminated as a defense by statute in another jurisdiction? Or if comparative negligence were established as the rule in the other State?

In my view there is no overriding consideration of public policy which justifies or directs this change in the established rule or renders necessary or advisable the confusion which such a change will introduce.

The judgment dismissing the complaint should be affirmed.

Judgment reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.

[1] Jackson having died after the commencement of the suit, his executrix was substituted in his place as defendant.

[2] In this case, as in nearly all such cases, the conduct causing injury and the injury itself occurred in the same jurisdiction. The phrase "place of the tort," as distinguished from "place of wrong" and "place of injury," is used herein to designate the place where both the wrong and the injury took place.

[3] See Cavers, A Critique of the Choice-of-Law Problem, 47 Harv. L. Rev. 173, 178; Cheatham, American Theories of Conflict of Laws: Their Role and Utility, 58 Harv. L. Rev. 361, 379-385; Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale L. J. 457, 479 et seq.; Hill, Governmental Interest and the Conflict of Laws, 27 U. Chi. L. Rev. 463; Lorenzen, Territoriality, Public Policy and the Conflict of Laws, 33 Yale L. J. 736, 746-749; Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale L. J. 468, 474 et seq.

[4] See Dicey, Conflict of Laws (7th ed., 1958), p. 937 et seq.; Leflar, The Law of Conflict of Laws (1959), p. 217 et seq.; Stumberg, Principles of Conflict of Laws (2d ed., 1951), p. 201 et seq.; Morris, The Proper Law of a Tort, 64 Harv. L. Rev. 881; Ehrenzweig, Guest Statutes in the Conflict of Laws, 69 Yale L. J. 595; Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan. L. Rev. 205.

[5] See, e.g., Richards v. United States, 369 U. S. 1, 12-13; Grant v. McAuliffe, 41 Cal. 2d 859; Schmidt v. Driscoll Hotel, 249 Minn. 376; Haumschild v. Continental Cas. Co., 7 Wis. 2d 130.

[6] See, e.g., Haag v. Barnes, 9 N Y 2d 554; Zogg v. Penn Mut. Life Ins. Co., 276 F.2d 861 (2d Cir.).

[7] See, e.g., Jansson v. Swedish Amer. Line, 185 F.2d 212, 218-219; Barber Co. v. Hughes, 223 Ind. 570, 586; Kievit v. Loyal Protective Life Ins. Co., 34 N. J. 475, 491-493; Estate of Knippel, 7 Wis. 2d 335, 343-345.

[8] See, e.g., Alaska Packers Assn. v. Industrial Acc. Comm., 294 U. S. 532; Matter of Nashko v. Standard Water Proofing Co., 4 N Y 2d 199; Kennerson v. Thames Towboat Co., 89 Conn. 367; Pierce v. Bekins Van & Stor. Co., 185 Ia. 1346; Aleckson v. Kennedy Motor Sales Co., 238 Minn. 110; see, also. 2 Larson, Workmen's Compensation Law, § 84.

[9] See Dyke v. Erie Ry. Co., 45 N.Y. 113; see, also, Bowles v. Zimmer Mfg. Co., 277 F.2d 868 (breach of warranty).

[10] See Grant v. McAuliffe, 41 Cal. 2d 859, supra; Herzog v. Stern, 264 N.Y. 379; see, also, Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan. L. Rev. 205.

[11] See Emery v. Emery, 45 Cal. 2d 421; Koplik v. C. P. Trucking Corp., 27 N. J. 1; Mertz v. Mertz, 271 N.Y. 466; Haumschild v. Continental Cas. Co., 7 Wis. 2d 130, supra; see, also, Ehrenzweig, Parental Immunity in the Conflict of Laws, 23 U. Chi. L. Rev. 474; Ford, Interspousal Liability for Automobile Accidents in the Conflict of Laws, 15 U. Pitt. L. Rev. 397. But cf. Coster v. Coster, 289 N.Y. 438.

[12] See Schmidt v. Driscoll Hotel, 249 Minn. 376, supra; Osborn v. Borchetta, 20 Conn. S. 163; Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333. See, also, Daily v. Somberg, 28 N. J. 372 (effect of release to one of several parties jointly liable for plaintiff's injury).

[13] We note that the Supreme Court of Canada has upheld the refusal of the Quebec courts to apply the Ontario guest statute to an accident affecting Quebec residents which occurred in Ontario. (See McLean v. Pettigrew, [1945] 2 D. L. R. 65.) This decision was dictated by the court's resort to the English choice of law rule, whereby the foreign tort is deemed actionable if actionable by the law of the forum and not justifiable by the law of the place of the tort. See Phillips v. Eyre, [1870] L. R. 6 Q. B. 1, 28-29; see, also, Dicey, Conflict of Laws [7th ed., 1958], p. 940.) However that may be, it would seem incongruous for this court to apply Ontario's unique statute in circumstances under which its own sister Provinces would not.

[14] It of course follows from our decision herein that, given the facts of the present case, the result would be the same and the law of New York applied where the foreign guest statute requires a showing of gross negligence.

[577] COUNSEL

Johnson, Greve, Clifford & Diepenbrock, Johnson, Davies, Greve & Clifford, Johnson, Greve & Clifford and Robert Lea for Petitioner.

Leonard G. Ratner as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

Alfonso Z. Gonzalez for Real Parties in Interest.

Gerald J. Adler and Crow, Lytle, Schleh & Gilwee as Amici Curiae on behalf of Real Parties in Interest.

[578] OPINION

SULLIVAN, J.

In this proceeding, petitioner Manuel Cid Hurtado seeks a writ of mandate directing respondent superior court to vacate its ruling that the applicable measure of damages in the underlying action for wrongful death was that prescribed by California law without any maximum limitation, rather than that prescribed by the law of Mexico which limits the amount of recovery. We have concluded that the trial court correctly chose the law of California. We deny the writ.

Real parties in interest, the widow and children of Antonio Hurtado (hereafter plaintiffs) commenced against Manuel Hurtado and Jack Rexius (hereafter defendants) the underlying action for damages for wrongful death, arising out of an automobile accident occurring in Sacramento County on January 19, 1969. Plaintiffs' decedent was riding in an automobile owned and operated by his cousin, defendant Manuel Hurtado. Defendant Hurtado's vehicle, while being driven along a two-lane paved road, collided with a pick-up truck, owned and operated by defendant Rexius, which was parked partially on the side of the road and partially on the pavement on which defendant Hurtado was driving. Upon impact, the truck in turn collided with an automobile parked in front of it, owned by Rexius and occupied by his son. Decedent died as a result of the collision.

At all material times plaintiffs were, and now are residents and domiciliaries of the State of Zacatecas, Mexico. Decedent, at the time of the accident, was also a resident and domiciliary of the same place and was in California temporarily and only as a visitor. All three vehicles involved in the accident were registered in California; Manuel Hurtado, Jack Rexius and the latter's son were all residents of California. Both defendants denied liability.

Defendant Hurtado moved respondent court for a separate trial of the issue whether the measure of damages was to be applied according to the law of California or the law of Mexico. The motion was granted and at the ensuing trial of this issue the court took judicial notice (Evid. Code, §§ 452, 453) of the relevant Mexican law prescribing a maximum limitation of damages for wrongful death.^[1] As a result it was established that [579] the maximum amount recoverable under Mexican law would be 24,334 pesos or $1,946.72 at the applicable exchange rate of 12.5 pesos to the dollar. After submission of the issue on briefs, the trial court announced its intended decision (Cal. Rules of Court, rule 232) and filed a memorandum opinion, ruling in substance that it would apply a measure of damages in accordance with California law and not Mexican law. Defendant Hurtado then sought a writ of mandate in the Court of Appeal to compel the trial court to vacate its ruling and to issue a ruling that Mexico's limitation of damages for wrongful death be applied. The Court of Appeal granted an alternative writ and thereafter issued a peremptory writ of mandate so directing the trial court. We granted a hearing in this court upon the petition of plaintiffs.

(1a) It is clear that mandate is an appropriate remedy to review the proceedings below. (2a) "Although it is well established that mandamus cannot be issued to control a court's discretion, in unusual circumstances the writ will lie where, under the facts, that discretion can be exercised in only one way." (Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [92 Cal. Rptr. 179, 479 P.2d 379]; Mannheim v. Superior Court (1970) 3 Cal.3d 678, 685 [91 Cal. Rptr. 585, 478 P.2d 17]; Hilmer v. Superior Court (1934) 220 Cal. 71, 73 [29 P. 175].) (1b) Here the facts have been stipulated to and are not in dispute. The sole issue is a question of law as to which measure of damages should be applied. (2b) The trial court is under a legal duty to apply the proper law and may be directed to perform that duty by writ of mandate. (Babb v. Superior Court, supra, at p. 851; Mannheim v. Superior Court, supra, at p. 685). (1c) The absence of another adequate remedy was determined by the Court of Appeal when it granted the alternative writ. (Mannheim v. Superior Court, supra, at p. 686; County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845 [59 Cal. Rptr. 609, 428 P.2d 593].)

(3) In the landmark opinion authored by former Chief Justice Traynor for a unanimous court in Reich v. Purcell (1967) 67 Cal.2d 551 [63 Cal. Rptr. 31, 432 P.2d 727] (see Symposium, Comments on Reich v. Purcell (1968) 15 U.C.L.A.L.Rev. 551-654), we renounced the prior rule, adhered to by courts for many years, that in tort actions the law of the place of the wrong was the applicable law in a California forum regardless of the issues before the court. We adopted in its place a rule requiring an analysis of the respective interests of the states involved (governmental interest approach) the objective of which is "to determine the law that [580] most appropriately applies to the issue involved." (Reich v. Purcell, supra, at p. 554.)^[2]

The issue involved in the matter before us is the measure of damages in the underlying action for wrongful death. Two states or governments are implicated. (1) California — the place of the wrong, the place of defendants' domicile and residence, and the forum; and (2) Mexico — the domicile and residence of both plaintiffs and their decedent.

The fact that two states are involved does not in itself indicate that there is a "conflict of laws" or "choice of law" problem. There is obviously no problem where the laws of the two states are identical. (Comment, False Conflicts, 55 Cal.L.Rev. 74, 76; Cavers, The Choice of Law Process (1965) pp. 89-90.) Here, however, the laws of California and Mexico are not identical. Mexico limits recovery by the survivors of the decedent in a wrongful death action to 24,334 pesos (see fn. 1, ante, and accompanying text). California provides that the heirs of the decedent are entitled to recover such sum, as under all the circumstances of the case, will be just compensation for the pecuniary loss which each heir has suffered by reason of the death of the decedent. (Bond v. United Railroads (1911) 159 Cal. 270, 276-279 [113 P. 366]; Valente v. Sierra Railway Co. (1910) 158 Cal. 412, 418-419 [111 P. 95]; Redfield v. Oakland C.S. Ry. Co. (1895) 110 Cal. 277, 285 [42 P. 822, 1063]; Code Civ. Proc., § 377.)

Although the two potentially concerned states have different laws, there is still no problem in choosing the applicable rule of law where only one of the states has an interest in having its law applied. (Comment, False Conflicts, 55 Cal.L.Rev. at p. 77; Cavers, op. cit. supra, pp. 89-90.) "When one of two states related to a case has a legitimate interest in the application of its law and policy and the other has none, there is no real problem; clearly the law of the interested state should be applied." (Currie, Selected Essays on Conflicts of Laws (1963) p. 189.)^[3]

(4a) The interest of a state in a tort rule limiting damages for wrongful [581] death is to protect defendants from excessive financial burdens or exaggerated claims. (Reich v. Purcell, supra, at p. 556; Cavers, op. cit. supra, at p. 151.) As stated in Reich this interest "to avoid the imposition of excessive financial burdens on [defendants] ... is also primarily local." (Reich v. Purcell, supra, at p. 556; Kay, Comments on Reich v. Purcell, 15 U.C.L.A.L.Rev. 584, 591-592); that is, a state by enacting a limitation on damages is seeking to protect its residents from the imposition of these excessive financial burdens. Such a policy "does not reflect a preference that widows and orphans should be denied full recovery." (Cavers, op. cit. supra, at p. 151.) Since it is the plaintiffs and not the defendants who are the Mexican residents in this case, Mexico has no interest in applying its limitation of damages — Mexico has no defendant residents to protect and has no interest in denying full recovery to its residents injured by non-Mexican defendants.

As the forum, California "can only apply its own law" (Reich v. Purcell, supra, at p. 553). (5) When the forum undertakes to resolve a choice-of-law problem presented to it by the litigants, it does not choose between foreign law and its own law, but selects the appropriate rule of decision for the forum to apply as its law to the case before it. (Reich v. Purcell, supra, at p. 553.) Therefore, when the forum state undertakes its "search to find the proper law to apply based upon the interests of the litigants and the involved states" (Reich v. Purcell, supra, at p. 553), it is understood that "[n]ormally, even in cases involving foreign elements, the court should be expected, as a matter of course, to apply the rule of decision found in the law of the forum." (Currie, op. cit. supra, at p. 183.) "Only `when it is suggested that the law of a foreign state should furnish the rule of decision' must the forum determine the governmental policy of its own and the suggested foreign laws, preparatory to assessing whether either or both states have an interest in applying their policy to the case." (Kay, Comments on Reich v. Purcell, 15 U.C.L.A.L.Rev. 584, 585.) (6) In short, generally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. In such event he must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it. (Currie, op. cit. supra, at pp. 1-76, 177-187; Symposium, Comments on Reich v. Purcell, 15 U.C.L.A.L.Rev. 551.)

(4b) In the case at bench, California as the forum should apply its own measure of damages for wrongful death, unless Mexico has an interest in having its measure of damages applied. Since, as we have previously explained, Mexico has no interest whatsoever in the application of its limitation [582] of damages rule to the instant case, we conclude that the trial court correctly chose California law.

(7) To recapitulate, we hold that where as here in a California action both this state as the forum and a foreign state (or country) are potentially concerned in a question of choice of law with respect to an issue in tort and it appears that the foreign state (or country) has no interest whatsoever in having its own law applied, California as the forum should apply California law. Since this was done, we deny the writ.

Nevertheless, although our holding disposes of the mandamus proceeding before us, we deem it advisable to consider the argument addressed by defendant to the interest of California in applying its measure of damages for wrongful death. We do this because the argument reflects a serious misreading of Reich which apparently has not been confined to the parties before us.

First, defendant contends that California has no interest in applying its measure of damages in this case because Reich v. Purcell, supra, 67 Cal.2d 551, determined that the interest of a state in the law governing damages in wrongful death actions is "in determining the distribution of proceeds to the beneficiaries and that interest extends only to local decedents and beneficiaries." (Reich, supra, at p. 556.) Decedent and plaintiffs were residents of Mexico and not "local decedents and beneficiaries" in California. Therefore, so the argument runs, California has no interest whatever in how plaintiff survivors, residents of Mexico, should be compensated for the wrongful death of their decedent, also a resident of Mexico, and conversely Mexico does have an interest.

Defendant's reading of Reich is inaccurate. It confuses two completely independent state interests: (1) the state interest involved in creating a cause of action for wrongful death so as to provide some recovery; and (2) the state interest involved in limiting the amount of that recovery. In Reich this court carefully separated these two state interests, although it referred to them in the same paragraph. The state interest in creating a cause of action for wrongful death is in "determining the distribution of proceeds to the beneficiaries";^[4] the state interest in limiting damage is "to [583] avoid the imposition of excessive financial burdens on them [defendants]."^[5] (Reich v. Purcell, supra, at p. 556.)

In the case at bench, the entire controversy revolves about the choice of an appropriate rule of decision on the issue of the proper measure of damages; there is no contention that plaintiffs are not entitled under the applicable rules of decision to some recovery in wrongful death. The Mexican rule is a rule limiting damages. Thus, the interest of Mexico at stake is one aimed at protecting resident defendants in wrongful death actions and, as previously explained, is inapplicable to this case, because defendants are not Mexican residents. Mexico's interest in limiting damages is not concerned with providing compensation for decedent's beneficiaries. It is Mexico's interest in creating wrongful death actions which is concerned with distributing proceeds to the beneficiaries and that issue has not been raised in the case at bench.

(8) The creation of wrongful death actions "insofar as plaintiffs are concerned" is directed toward compensating decedent's beneficiaries. (See fn. 4, ante.) California does not have this interest in applying its wrongful death statute here because plaintiffs are residents of Mexico. However, the creation of wrongful death actions is not concerned solely with plaintiffs. As to defendants the state interest in creating wrongful death actions is to deter conduct. We made this clear in Reich: "Missouri [as the place of wrong] is concerned with conduct within her borders and as to such conduct she has the predominant interest of the states involved." (Reich v. Purcell, supra, at p. 556.) We went on to observe that the predominant interest of the state of the place of the wrong in conduct was not in rules concerning the limitation of damages: "Limitations of damages for wrongful death, however, have little or nothing to do with conduct. They are concerned not with how people should behave but with how survivors should be compensated." (Reich v. Purcell, supra, at p. 556.) Since it was not involved in Reich, we left implicit in our conclusion the proposition that the predominant interest of the state of the place of the wrong in conduct is in the creation of a cause of action for wrongful death.

It is manifest that one of the primary purposes of a state in creating a cause of action in the heirs for the wrongful death of the decedent is to deter the kind of conduct within its borders which wrongfully takes life. (Seidelson, The Wrongful Death Action (1972) 10 Duquesne L.Rev. 525; [584] see generally Cavers, op. cit. supra, at pp. 139-180; Currie, op. cit. supra, at pp. 690-742] Symposium, Comments on Reich v. Purcell, 15 U.C.L.A. L.Rev. 551.) It is also abundantly clear that a cause of action for wrongful death without any limitation as to the amount of recoverable damages strengthens the deterrent aspect of the civil sanction: "the sting of unlimited recovery ... more effectively penalize[s] the culpable defendant and deter[s] it and others similarly situated from such future conduct." (Seidelson, op. cit. supra, at p. 528, fn. 12.) Therefore when the defendant is a resident of California and the tortious conduct giving rise to the wrongful death action occurs here, California's deterrent policy of full compensation is clearly advanced by application of its own law. This is precisely the situation in the case at bench. (9) California has a decided interest in applying its own law to California defendants who allegedly caused wrongful death within its borders. On the other hand, a state which prescribes a limitation on the measure of damages modifies the sanction imposed by a countervailing concern to protect local defendants against excessive financial burdens for the conduct sought to be deterred.

(10) It is important, therefore to recognize the three distinct aspects of a cause of action for wrongful death: (1) compensation for survivors, (2) deterrence of conduct and (3) limitation, or lack thereof, upon the damages recoverable. Reich v. Purcell recognizes that all three aspects are primarily local in character. The first aspect, insofar as plaintiffs are concerned, reflects the state's interest in providing for compensation and in determining the distribution of the proceeds, said interest extending only to local decedents and local beneficiaries (see fn. 4, ante); the second, insofar as defendants are concerned, reflects the state's interest in deterring conduct, said interest extending to all persons present within its borders; the third, insofar as defendants are concerned, reflects the state's interest in protecting resident defendants from excessive financial burdens. In making a choice of law, these three aspects of wrongful death must be carefully separated. The key step in this process is delineating the issue to be decided.

The difficulty and importance of this process is underscored by Ryan v. Clark Equipment Co. (1969) 268 Cal. App.2d 679 [74 Cal. Rptr. 329], which defendant erroneously claims to be supportive of his position. In Ryan, the plaintiff's decedent was killed in Oregon while operating a front-end loader in the course of his employment by two Oregon corporate employers. At the time of the accident, the decedent, the plaintiff and their children were residents of Oregon. The plaintiff received on behalf of herself and her children a total of $35,000 from the decedent's employers in full settlement of their rights under the Employer's Liability [585] Act of the State of Oregon. Thereafter the plaintiff on behalf of the decedent's heirs brought an action in California against the manufacturer of the front-end loader, a Michigan corporation doing business in California. Oregon law limited recovery for wrongful death to $20,000 and further provided that the $35,000 already received must be set-off against any wrongful death recovery. As a consequence, any possible recovery for wrongful death would be extinguished by the set-off. Michigan law, however, imposed no limitation on the measure of damages for wrongful death. The Court of Appeal upheld the choice of Oregon law.

Since the plaintiffs resided in Oregon, that state had an interest in seeing that they received compensation and did not become wards of the state. However, by placing a limitation on this recovery, Oregon had subordinated its interest in compensating resident survivors in amounts in excess of $20,000 to its interest in protecting the financial security of resident defendants by preventing the imposition of excessive burdens. The Oregon plaintiffs, through workmen's compensation, had already been compensated in excess of $20,000. Oregon's interest in their compensation had been fulfilled. The defendant manufacturing corporation, while not incorporated in Oregon, was lawfully doing business there and Oregon had an interest extending to such a resident business entity in applying that state's limitation of damages in order to protect such defendant's financial security.

In Ryan, the allegedly tortious conduct was in the manufacture of the loader which had been accomplished in Michigan by a corporation incorporated in that state. Michigan had an interest in applying its rule of compensation without limitation as to amount to all who committed tortious conduct within that state, but particularly to resident defendants, in order to deter such conduct.

Both Oregon and Michigan had an interest in applying their respective wrongful death statutes to the same corporate defendant. Insofar as the defendant did business in Oregon, that state had an interest in protecting the defendant's financial security by limiting damages; insofar as the defendant was a Michigan corporation and allegedly committed tortious conduct in Michigan, that state had an interest in subjecting the defendant to unlimited liability in order to deter such conduct. Thus Ryan is a case of true conflict; both states there involved had a legitimate interest in the measure of damages.

The Court of Appeal resolved the conflict by applying the monetary limitations of Oregon law and declared that Oregon's interest "overrides any possible concern of Michigan in the regulation of the activities of [586] manufacturers." (Ryan v. Clark Equipment Co., supra, 268 Cal. App.2d 679, 683.)

(11) Without addressing ourselves to the accuracy of this conclusion, we must note that the Court of Appeal incorrectly identified Oregon's interest in applying its limitation of damages in exactly the manner as contended by defendants herein, namely that limitations of damages are concerned with compensation of survivors. The court relied on Reich v. Purcell, supra, 67 Cal.2d 551 for that proposition. As hereinabove explained, this court concluded in Reich that a state's interest in limiting recovery in wrongful death actions is in protecting resident defendants from excessive financial burdens. Consequently Oregon's interest in limiting the amount of recovery, as opposed to providing some recovery, is directed at resident defendants not resident plaintiffs. To the extent that any language in Ryan v. Clark Equipment Co., supra, 268 Cal. App.2d 679 is inconsistent with this opinion it is disapproved.

Defendant's final contention is that California has no interest in extending to out-of-state residents greater rights than are afforded by the state of residence, citing Ryan v. Clark Equipment Co., supra, 268 Cal. App.2d 679, 683 and Howe v. Diversified Builders, Inc. (1968) 262 Cal. App.2d 741, 745-746 [69 Cal. Rptr. 56]. Defendant urges seemingly as an absolute choice of law principle that plaintiffs in wrongful death actions are not entitled to recover more than they would have recovered under the law of the state of their residence. (12) In effect defendant argues that the state of plaintiffs' residence has an overriding interest in denying their own residents unlimited recovery.

Limitations of damages express no such state interest. A policy of limiting recovery in wrongful death actions "does not reflect a preference that widows and orphans should be denied full recovery." (Cavers, op. cit. supra, at p. 151.) Nor do the cases cited by defendant support his contention. In both Ryan and Howe the Court of Appeal determined that no other state had a sufficient interest in the case to require or justify the plaintiffs receiving unlimited recovery under the rules of decisions of those states. For example in Howe the court stressed that California had no real interest in applying its law, that only Nevada had such an interest, and that accordingly the Nevada plaintiffs suing in California, should be bound by the law of Nevada as the only applicable rule of decision.

Because Mexico has no interest in applying its limitation of damages in wrongful death actions to nonresident defendants or in denying full [587] recovery to its resident plaintiffs, the trial court both as the forum, and as an interested state, correctly looked to its own law.

The alternative writ of mandate is discharged and the petition for a peremptory writ is denied.

Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Burke, J., and Clark, J., concurred.

Petitioner's application for a rehearing was denied July 10, 1974.

[1] Section 1889 of the Civil Code of the State of Zacatecas, Mexico, provided that a decedent's survivors may receive a maximum of 25 pesos per day for a period of 730 days. This section expressly makes the Federal Labor Law (of Mexico) applicable in determining the amount of damages recoverable in wrongful death actions. Section 1890 of the Zacatecas Civil Code provides that the court may, in its discretion, award an additional amount, not to exceed one-third of the first amount, as extra indemnity.

[2] "The forum must search to find the proper law to apply based upon the interests of the litigants and the involved states." (Reich v. Purcell, supra, 67 Cal.2d at p. 553.) The governmental interests approach is applicable not only to situations involving multistate contacts but also to those involving a state of the United States vis-a-vis a political entity of a foreign country. (Kasel v. Remington Arms Co. (1972) 24 Cal. App.3d 711, 731 [101 Cal. Rptr. 314].)

[3] "The case of Reich v. Purcell seems the very paradigm of the false conflict, and, apart from its service in aligning California squarely with the states rejecting the vested rights theory, Chief Justice Traynor's opinion should prove invaluable as a methodological exercise in the resolution of the choice-of-law problem by reference to the purposes of the laws involved." (Cavers, Comments on Reich v. Purcell, 15 U.C.L.A.L.Rev. 647, fn. omitted.)

[4] "Wrongful death statutes create causes of action in specified beneficiaries and distribute the proceeds to those beneficiaries. The proceeds in the hands of the beneficiaries are not distributed through the decedent's estate and, therefore, are not subject to the claims of the decedent's creditors and consequently do not provide a fund for local creditors. Accordingly, the interest of a state in a wrongful death action insofar as plaintiffs are concerned is in determining the distribution of proceeds to the beneficiaries and that interest extends only to local decedents and beneficiaries." (Reich v. Purcell, supra, at p. 556, italics added.)

[5] "Missouri's limitation on damages expresses an additional concern for defendants, however, in that it operates to avoid the imposition of excessive financial burdens on them. That concern is also primarily local." (Reich v. Purcell, supra, at p. 556; italics added.)

[1269] Frederic W. Schwartz, Jr., with whom Robert Cadeaux, Washington, D.C., was on the brief, for appellants.

Richard L. Fritts, with whom Joseph P. Clancy, Chevy Chase, Md., was on the brief, for appellee.

Before PRYOR,^[1] Chief Judge, NEWMAN, Associate Judge, and NEBEKER^[2], Associate Judge, Retired.

NEWMAN, Associate Judge:

In this case of first impression, we are asked to decide whether third parties suffering accidental injuries as the result of the acts of an intoxicated person state a cause of action against a tavern keeper where, as here, they allege (1) that the tavern keeper violated D.C.Code § 25-121(b) (1981) by serving a patron who was, or appeared to be, already intoxicated, and (2) that the statutory violation was a proximate cause of the injuries. We hold, on the basis of those cases in which we have recognized that violation of a statute designed to protect public safety supplies sufficient evidence on which to rest a claim for liability in tort, that Rong Yao Zhou and Xiu Juan Wu have stated a cause of action under District of Columbia law. We, therefore, vacate the order of the trial court granting Jennifer Mall Restaurant's motion for judgment on the pleadings, and remand for trial.

I.

Assuming as true the allegations as pleaded in the complaint, as we must for purposes of our review of a motion to dismiss for failure to state a claim, Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 364 (D.C.1984); McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C.1979), we are presented with the following set of facts. At approximately 11:30 p.m. on the evening of May 28, 1982, Rong Yao Zhou and Xiu Juan Wu, husband and wife, were seriously injured when they were struck by a car operated by a drunk driver on Connecticut Avenue in Chevy Chase, Maryland. The driver, Peter Joray, was returning from the Brittany Restaurant (trade name of appellee Jennifer Mall Restaurant, Inc.) in Washington, D.C. Employees of the restaurant had unlawfully served alcohol to Joray after he had become intoxicated and after his intoxication had become apparent. It was in this impaired condition that Joray [1270] entered his car and drove into Maryland, soon thereafter injuring Zhou and Wu.

On May 9, 1984, Zhou and Wu filed suit in Superior Court seeking 3.5 million dollars in damages from Jennifer Mall Restaurant, Inc. Jennifer Mall Restaurant moved under Super.Ct.Civ.R. 12(b) for judgment on the pleadings for failure to state a claim upon which relief can be granted. Judge Hannon granted the motion without opinion on May 6, 1986.

II.

We are confronted at the outset by the question of whether to apply District of Columbia law or Maryland law to a personal injury action arising from an accident occurring in Maryland, near the District of Columbia boundary, where the defendant's allegedly negligent conduct occurred in the District of Columbia by a corporation doing business here, and where plaintiffs are District of Columbia residents. We note that the choice of law issue has not been raised by the parties to this suit, who have assumed that District of Columbia law applies. Under Maryland law, a tavern keeper would not be liable in tort under the facts alleged in this case. See Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981).

The District of Columbia has long followed the "governmental interests analysis" approach to choice of law. Williams v. Williams, 390 A.2d 4, 5 (D.C. 1978); Gaither v. Myers, 131 U.S.App.D.C. 216, 222, 404 F.2d 216, 222 (1968); Tramontana v. S.A. Empresa de Viacao Area Rio Grandense, 121 U.S.App.D.C. 338, 341, 350 F.2d 468, 471 (1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966). Therefore, it is not the place of the injury that necessarily determines which law is to be applied. Rather, our jurisdiction, and others, see generally Allstate Insurance Co. v. Hague, 449 U.S. 302, 314 n.19, 316 n.22, 101 S.Ct. 633, 641 n.19, 642 n.22, 66 L.Ed.2d 521 (1981), have recognized that the place of the injury may be a mere "fortuity" in light of the fact that the relationship of the parties to the litigation is centered elsewhere. Kaiser-Georgetown Community Health Plan, Inc. v. Stutsman, 491 A.2d 502, 508 (D.C.1985) (applying District of Columbia law in medical malpractice action arising from medical services performed in Virginia upon Virginia resident, where services were benefit of plaintiff's employment in District of Columbia and defendant was District of Columbia corporation); Williams v. Rawlings Truck Line, Inc., 123 U.S.App.D.C. 121, 125, 357 F.2d 581, 585 (1965). An automobile or other vehicular accident occurring close to the border between two states presents a classic case of such a fortuity. See Gaither, supra; Allstate, supra, 449 U.S. at 314 & n.19, 101 S.Ct. at 641 n.19; Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 134-135, 172 N.E.2d 526, 527 (1961); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 750-51, 191 N.E.2d 279, 284 (1963); see also Estrada v. Potomac Electric Power Co., 488 A.2d 1359, 1364 (D.C.1985) (contrasting unpredictable situs of injury resulting from lack of due care concerning automobile with fixed situs when negligence involves care of land).

In applying governmental interests analysis to the facts of this case, we consider the interests, respectively, of Maryland and the District of Columbia. From the ruling of Maryland's highest court in Felder, supra, we understand that state to adhere to a policy of protecting negligent bar owners from civil liability, although they remain subject to the criminal penalties that attach for serving a person who is "visibly under the influence," MD. ANN. CODE art. 2B, § 118(a) (1957, 1979 Repl. Vol.), see id., 438 A.2d at 498. By contrast, a District of Columbia rule that would make tavern keepers answerable in tort, as well as under the criminal sanctions of D.C.Code § 25-121(b) (1981), would signify interests of this jurisdiction in compensating victims for resulting injuries, as well as in deterring harmful conduct.

The apparent clash of policies between Maryland and the District of Columbia presents a "false conflict" in the context of this case. A "false conflict" occurs when the policy of one state would be advanced by application of its law, while that of the other state would not be advanced [1271] by application of its law. In such a situation, the law of the interested jurisdiction prevails. Kaiser-Georgetown, supra, 491 A.2d at 509; Gaither, supra, 131 U.S. App.D.C. at 224, 404 F.2d at 224. Here, Maryland's interest in protecting tavern owners from tort liability is not implicated where the negligent restaurant is situated in the District of Columbia and the unlawful conduct occurred therein. Hence we apply the law of the interested jurisdiction, the District of Columbia.^[3]

Should there remain any question whether District of Columbia law applies in this case, Gaither, supra, furnishes the answer. Gaither is binding precedent^[4] that District of Columbia law applies when a cause of action is cognizable under District of Columbia tort law on the basis of a violation within the District of Columbia of a District of Columbia statute or regulation, even though the injury occurs nearby in Maryland where a similar statute has been interpreted by Maryland's highest court as not supporting civil liability. In Gaither, the District of Columbia regulation at issue required car owners to remove their keys from their vehicles when leaving them unattended. The negligent conduct occurred in the District of Columbia. The car was subsequently stolen and driven into Maryland, where it struck and injured plaintiff five miles from the District of Columbia border.

Finally, we observe that other jurisdictions that have confronted the question of tavern keeper liability arising in a multistate context have concluded that "the place where the liquor was unlawfully sold is of greater significance than the location of the accident because, when an intoxicated person is driving, the actual site of the crash is largely fortuitous," Pardey v. Boulevard Billiard Club, 518 A.2d 1349, 1352 (R.I.1986), and, accordingly, have applied the rule of liability of the state in which the vendor committed the unlawful act. See, e.g., Trapp v. 4-10 Investment Corp., 424 F.2d 1261, 1265 (8th Cir.1970); Bankford v. DeRock, 423 F.Supp. 602, 606 (N.D. Iowa 1976); Zucker v. Vogt, 200 F.Supp. 340, 343 (D.Conn.1961), aff'd, 329 F.2d 426, 428 n.2 (2d Cir.1964); Schmidt v. Driscoll Hotel, 249 Minn. 376, 82 N.W.2d 365, 368 (1957); Pardey, supra, 518 A.2d at 1352-53.

III.

Having determined that District of Columbia law governs the outcome of this case, we turn now to examine the substantive question of whether Zhou and Wu have stated a cause of action under the law of this jurisdiction. D.C.Code §§ 25-101 to 25-139 (1981), the Alcoholic Beverage Control Act, regulates the sale of liquor in the District of Columbia. Section 25-121(b), in pertinent part, prohibits holders of licenses under § 25-111 from "permit[ing] on the licensed premises ... the consumption of any beverage by any intoxicated person, or any person of notoriously intemperate habits, or any person who appears to be intoxicated...."^[5] Violators are subject to fine [1272] or imprisonment, pursuant to D.C.Code § 25-132 (1981). We conclude that this statute, while not itself providing a cause of action against tavern keepers by injured third parties, supplies the standard of care by which tavern keepers' conduct is to be measured under the common law. Hence, when a plaintiff alleges that a tavern keeper has violated § 25-121(b), he alleges sufficient evidence of negligence that, when combined with an allegation of proximate causation, states a cause of action under District of Columbia law.

A.

While the question of tavern keeper liability is one of first impression before this court, it has been considered — in cases not binding upon us — by the Superior Court of the District of Columbia and by the United States Court of Appeals for the District of Columbia Circuit, with inconsistent results. In Marusa v. District of Columbia, 157 U.S.App.D.C. 348, 484 F.2d 828 (1973), the D.C. Circuit was presented with a claim against a bar owner by a person shot by an allegedly intoxicated police officer following the officer's consumption of alcoholic beverages at the defendant's establishment. The court concluded that "[i]t is settled law in this court that `violation of an ordinance intended to promote safety' can give rise to a negligence action." Id. at 353, 484 F.2d at 833, citing Whetzel v. Jess Fisher Management Co., 108 U.S.App. D.C. 385, 389, 282 F.2d 943, 947 (1960), and that permitting a cause of action against the tavern keeper would not depart sharply from common law principles. Id., at 355, 484 F.2d at 835. The court had little trouble determining that "it seems obvious that regulations governing the sale of liquor are intended to enhance public safety"; that the statute imposes certain duties on the tavern owner; and that "in light of the purpose of the statute, ... those duties are owed to the community at large ... [including] third parties ... who might come into contact with inebriated persons." Id., at 354, 484 F.2d at 834 (footnotes omitted).

Five years after the D.C. Circuit's decision in Marusa, the Superior Court of the District of Columbia (Hannon, J.) considered the civil liability of tavern owners in the context of a somewhat different pattern of events. In Clevenger v. District of Columbia, 106 Daily Wash.L.Rptr. 1561 (D.C.Super.Ct. July 11, 1978), the plaintiff was an intoxicated patron who sought to recover from the restaurant's owner for injuries allegedly incurred at the hands of police who had been called by the tavern keeper for assistance in removing the plaintiff from his premises.

Judge Hannon addressed the Clevenger case as if it raised two entirely separate questions: could plaintiff state a claim of negligence under the common law, or, alternatively, could he avail himself of an "implied cause of action" under D.C.Code § 25-121. He rejected Clevenger's complaint on both grounds. As for the common law ground, Judge Hannon concluded that "the concepts of proximate cause and reasonable forseeability become severely strained when ... the claimed injuries result from independent, intentional torts of third parties allegedly provoked by plaintiff's intoxication." Id. at 1565. As for the implied statutory claim, he drew two conclusions. First, he determined that the Alcoholic Beverage Control Act reflected a "congressional purpose of promoting morality and protecting public sensibilities" rather than of protecting public safety, which he believed was necessary to imply a cause of action under the statute. Id. at 1566. Second, in Judge Hannon's view, even assuming a statutory purpose of protecting public safety, the plaintiff in Clevenger was not among the class of persons that the statutory provision sought to protect, since Congress did not "evidence any intention to protect the safety of individuals who voluntarily drink to excess." Id. at 1567.

[1273] The question of tavern keeper liability revisited the D.C. Circuit in 1986. In Norwood v. Marrocco, 251 U.S.App.D.C. 2, 780 F.2d 110 (1986), the court effectively overruled Marusa, relying on the Superior Court's intervening Clevenger decision. Factually, Norwood was an amalgam of Marusa and Clevenger. As in Marusa, the plaintiff was a third party claiming damages for assault by an intoxicated patron of defendant's restaurant. However, as in Clevenger, plaintiff himself was intoxicated, although as the result of drinks served elsewhere.

The D.C. Circuit in Norwood focused exclusively on whether an "implied cause of action" could be found under D.C.Code § 25-121, and — concluding that it was "appropriate to refer to Clevenger for authoritative guidance" on the law of the District of Columbia — answered that question in the negative, 251 U.S.App.D.C. at 4-5, 780 F.2d at 112-13. Hence, Norwood ignored the question of whether the plaintiff had stated a negligence cause of action under common law principles.

B.

We reject the approach taken by Norwood and Clevenger, which, we believe, inappropriately isolates from the question of common law liability the significance of § 25-121(b) of the Alcoholic Beverage Control Act. By asking, with respect to that Act, only whether it creates an "implied cause of action," those cases ignore a fundamental principle of our common law and misapply theories that allocate roles between courts and legislatures. We endorse instead the view taken in Marusa. That view rests upon a long established principle of tort liability in the District of Columbia and one entirely consistent with the role of courts in giving content to the common law.

As we stated in Ceco Corp. v. Coleman, 441 A.2d 940 (D.C.1982):

The "general rule" in this jurisdiction is that "where a particular statutory or regulatory standard is enacted to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff can establish his relationship to the statute, unexplained violation of that standard renders the defendant negligent as a matter of law."

Id. at 945, quoting Richardson v. Gregory, 108 U.S.App.D.C. 263, 266, 281 F.2d 626, 629 (1960) (added emphasis deleted). Hence, "[o]ccasionally ... legislative action fashions applicable standards of conduct which themselves fix the duty of care required[;] [f]ailure to meet these community standards stamps the offender `negligent,' i.e. failing to exercise that degree of care necessary in the particular situation." Richardson, supra, 108 U.S.App.D.C. at 266, 281 F.2d at 629. See also RESTATEMENT (SECOND) OF TORTS § 285 comment c at 21 (1965) ("Even where a legislative enactment contains no express provision that its violation shall result in tort liability, and no implication to that effect, the court may, and in certain types of cases customarily will, adopt the requirements of the enactment as the standard of conduct necessary to avoid liability for negligence."); W. Keeton, D. Dobbs, R. Keeton, D. Owen, PROSSER & KEETON ON THE LAW OF TORTS § 36 at 220 (5th ed. 1984).

The rule that "[v]iolation of an ordinance intended to promote safety is negligence," Ross v. Hartman, 78 U.S.App.D.C. 217, 218, 139 F.2d 14, 15 (1943), cert. denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080 (1944), is rooted in the principle that failure to comply with a statutory requirement designed to protect public safety "is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform," Martin v. Herzog, 228 N.Y. 164, 168, 126 N.E. 814, 815 (1920) (Cardozo, J.). Hence, this "axiom of tort law ... recognizes that the continued vitality of the common law, including the law of torts, depends upon its ability to reflect contemporary community values and ethics." Whetzel, supra, 108 U.S.App. D.C. at 388, 282 F.2d at 946.

Incorporating into the common law a standard of care set by a legislative enactment is distinct from determining that a cause of action arises, by implication, under a statute. The latter task is a matter of [1274] statutory construction, requiring the court to determine whether the legislature intended something other than that which it provided expressly. Cannon v. University of Chicago, 441 U.S. 677, 688, 694, 99 S.Ct. 1946, 1953, 1956, 60 L.Ed.2d 560 (1979). Courts appropriately refrain from making such inferences except under certain narrowly defined circumstances. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2089, 45 L.Ed.2d 26 (1975) (standards for implying private causes of action under federal statutes). By contrast, the decision to adopt from a penal statute a standard of care to be applied in determining common law negligence is "purely a judicial one, for the court to make." RESTATEMENT, supra, § 286 comment d at 26; Ontiveros v. Borak, 136 Ariz. 500, 510 & n. 3, 667 P.2d 200, 210 & n. 3 (1983) (en banc). Defining the contours of common law liability, including the duty that may have been breached in a negligence case, is a task traditionally within the purview of the judicial branch. Kelly v. Gwinnell, 96 N.J. 538, 552-53, 555-57, 476 A.2d 1219, 1226, 1228 (1984); El Chico Corp. v. Poole, 732 S.W.2d 306, 314-15 (Tex.1987).

Our courts have recognized that a variety of statutes have a public safety purpose justifying the application of the rule that their violation constitutes negligence. In Ross, supra, and Gaither, supra, this jurisdiction held that violation of an ordinance prohibiting vehicle owners from leaving their automobiles unattended with the key in the ignition constituted negligence per se in a personal injury action against the car owner by a third party injured by the stolen vehicle following its theft. In the court's view, "[t]he evident purpose of requiring motor vehicles to be locked is not to prevent theft for the sake of owners or the police, but to promote the safety of the public in the streets." Ross, supra, 78 U.S.App.D.C. at 218, 139 F.2d at 15. Similar conclusions have been drawn with respect to building codes, see H.R.H. Construction Co. v. Conroy, 134 U.S.App.D.C. 7, 9, 411 F.2d 722, 724 (1969) (injury to construction worker); Elliott v. Michael James, Inc., 182 U.S.App.D.C. 138, 143, 559 F.2d 759, 764 (1977) (stabbing of restaurant employee; escape prevented because doors unlawfully locked on inside); industrial safety board regulations, see Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 301-02, 449 F.2d 956, 963-64 (1971); traffic regulations, see Leiken v. Wilson, 445 A.2d 993, 1002 (D.C.1982); Bauman v. Sragow, 308 A.2d 243, 244 (D.C.1973); Danzansky v. Zimbolist, 70 App.D.C. 234, 236, 105 F.2d 457, 459 (1939); housing codes, see Whetzel, supra, 108 U.S.App.D.C. at 392, 282 F.2d at 950 (injury to tenant by falling ceiling; landlord's violation of code by renting habitation not "in repair" sufficient to send claim of negligence to jury); and the statute making it criminal for a police officer to use excessive force, see District of Columbia v. White, 442 A.2d 159, 163-64 (D.C.1982) (violation supports claim of negligence in wrongful death action).

In addition, even where the court does not preceive a public safety purpose in the legislative enactment, the statutory violation may be admitted as evidence of negligence, although it does not constitute negligence per se. Stevens v. Hall, 391 A.2d 792, 795-96 (D.C.1978); Whetzel, supra, 108 U.S.App.D.C. at 389, 282 F.2d at 947; Peigh v. Baltimore & Ohio R. Co., 92 U.S.App.D.C. 198, 200-01, 204 F.2d 391, 393-94 (1953). Compare Standardized Civil Jury Instructions for the District of Columbia, No. 5-8 (1981) ("If you find that a regulation ... intended to protect the public has been violated and thereby caused injuries which the regulation ... intended to avoid, you must find negligence....") (emphasis added) with No. 5-9 ("The violation of a regulation ..., which is a cause of a plaintiff's ... injuries is evidence of negligence ... to be considered by you.") (emphasis added). Finally, where the statute has a public safety purpose, but the defendant has put forth evidence excusing its violation, that violation may also be considered evidence of negligence rather than negligence per se. Leiken, supra, 445 A.2d at 1002-03; Ceco, supra, 441 A.2d at 945; Hecht Co. v. McLaughlin, 93 U.S.App.D.C. 382, 385-86, 214 F.2d 212, 215-16 (1954) (although department store door arguably was in violation [1275] of building code, its installation had been approved by Department of Building Inspection).^[6]

C.

We have no difficulty concluding that § 25-121(b) of the Alcoholic Beverage Control Act has a public safety purpose, and that its unexcused violation therefore constitutes negligence per se, i.e., breach of the duty of care that tavern keepers owe to the public. Thus, when members of the public allege, as plaintiffs have here, that the tavern keeper's negligence was the legal cause of their injuries, they state a cause of action under District of Columbia law.

In Clevenger, Judge Hannon, in considering the implied statutory claim, concluded that § 25-121(b) did not have a public safety purpose, but rather a "purpose of promoting morality and protecting public sensibilities." 106 Daily Wash.L.Rptr. at 1566. We believe that this view is shortsighted, at best. For even if the legislation may be accurately regarded in some respects as post-Prohibition "morals" legislation — desigend to contain that which Prohibition had failed in attempting to ban altogether —, the "moral" imperative to control the distribution and consumption of alcohol cannot be said to have existed separate and apart from a recognition that excessive consumption presents serious threats to public safety.

Congress in 1934 clearly was aware of the public safety hazards associated with alcohol abuse, and incorporated safety concerns as an integral part of its comprehensive scheme to regulate the sale and use of alcohol in the nation's capital. Senator Sheppard, who supported Prohibition, and opposed the legislation regulating the reintroduction of alcohol in the District of Columbia, was certain that among the many evils associated with the substance was that it "multiplies the hazards on our streets and highways, imperiling the lives of motorists, pedestrians, and little children." 78 CONG.REC. 698 (1934). A majority of the Congress apparently shared Senator Sheppard's safety concern, when, in enacting the Alcoholic Beverage Control Act, it included, alongside § 25-121(b), § 25-127 which prohibits the operation of a locomotive, streetcar, elevator, watercraft, or horse-drawn vehicle by an intoxicated person. 48 Stat. 333, ch. 4 (1934). Section 25-127, by its terms, also left intact another pre-existing statute, 46 Stat. 1428 ch. 317 (1931), now codified at § 40-716, prohibiting driving of motor vehicles while intoxicated.

Congress understood that it was regulating a dangerous substance, and that the potential for injury and accident associated with intoxication is amplified when the intoxicated person is placed at the controls of a mechanical device, particularly one involved in transportation. When, as alleged in this case, an intoxicated customer who has been served liquor in violation of the Alcoholic Beverage Control Act crashes his car shortly after departing from defendant's establishment, injuring third parties, we believe that a harm has occurred which § 25-121(b) was designed to prevent and that the doctrine of negligence per se should apply.^[7]

[1276] Our view is not mitigated by the proposition that public safety may have been only a partial purpose of the legislation. In District of Columbia v. Nordstrom, 117 U.S.App.D.C. 165, 327 F.2d 863 (1963), the court held that violation of a traffic regulation prohibiting parking of vehicles on the sidewalk was negligence in a case in which a pedestrian claimed that she was injured when, in stepping off the sidewalk to avoid an unlawfully parked vehicle, she stepped into a hole and fell. The court concluded that "[r]easonably construed the regulation is designed in part at least for the safety of pedestrians.... It is reasonable to assume, in the absence of evidence to the contrary, that the framers of the regulation were aware of the danger to pedestrians which might result from obstructing a sidewalk and that one purpose of the regulation was to prevent such danger." Id. at 168, 327 F.2d at 866 (emphasis added).

We think that the same can easily be said of the statutory provision prohibiting tavern keepers from serving alcohol to persons already intoxicated or apparently intoxicated. Liquor control laws frequently have multiple purposes, District of Columbia v. Gardiner, 39 App.D.C. 389, 393 (1912); Ontiveros, supra, 667 P.2d at 211; Largo Corp. v. Crespin, 727 P.2d 1098, 1108 (Colo.1986) (en banc), and our courts have held that "a liberal and reasonable construction shall be given these statutes in view of their remedial objects and purposes so as to effect the[se purposes]," Gardiner, supra, 39 App.D.C. at 393. The courts of other jurisdictions, examining prohibitions nearly identical to § 25-121(b), have concluded that such an enactment "unquestionably reflects a legislative concern for the clear dangers surrounding the sale or provision of alcohol to those who cannot safely consume it," Largo, supra, 727 P.2d at 1108; see also Thaut v. Finley, 50 Mich.App. 611, 613, 213 N.W.2d 820, 822 (1973) ("it would be absurd indeed to maintain that one of the purposes of the statute in question was not to protect the public from the risk of injury") (statute prohibiting sale of alcohol to minors). Violation of statutes that prohibit sale of alcoholic beverages to intoxicated persons or to minors has been the most common basis upon which courts have found breach of the duty of care that is necessary for imposing tort liability on tavern keepers for resulting injuries.^[8]

IV.

Accordingly, we hold that the unexcused violation by a tavern keeper of D.C. Code § 25-121(b) (1981), by serving a person already intoxicated or apparently intoxicated, renders the tavern keeper negligent per se, and that where injuries are proximately caused to a member of the public by that violation the tavern keeper may be liable in damages. We reverse the trial court's order granting Jennifer Mall Restaurant's motion for judgment on the pleadings, and we remand for trial.

[1277] In remanding, we caution that our holding leaves a number of issues open for proof at trial. See generally Gaither, supra, 131 U.S.App.D.C. at 221 n. 16, 404 F.2d at 221 n. 16. First, the jury must surmount the threshold question of whether, in fact, the statute has been violated. Stevens, supra, 391 A.2d at 796 n.2; Bauman, supra, 308 A.2d at 244. The defendant in turn may present evidence as to whether the violation was excusable under the circumstances or whether other acts of due care negate the negligence implied by the statutory violation. Gaither, supra, 131 U.S.App.D.C. at 221 n. 16, 404 F.2d at 221 n. 16; Hecht Co., supra, 93 U.S.App.D. C. at 384-86, 214 F.2d at 214-16.

In addition, plaintiffs must prove that the statutory violation was the proximate cause of their injuries. Although in Ross, supra, the circuit court held that "[b]oth negligence and causation are too clear in this case ... for submission to a jury," 78 U.S.App.D.C. at 218-19, 139 F.2d at 15-16, other cases have emphasized that causation is a matter for proof, see Ceco, supra, 441 A.2d at 945; H.R.H., supra, 134 U.S.App. D.C. at 9, 411 F.2d at 724; Gaither, supra, 131 U.S.App.D.C. at 221 n. 16, 404 F.2d at 221 n. 16; Richardson, supra, 108 U.S. App.D.C. at 266-67, 281 F.2d at 629-30; see also Casey v. Corson & Gruman Co., 95 U.S.App.D.C. 178, 179, 221 F.2d 51, 52 (1955) (key-in-ignition ordinance; negligence was "too remote from the collision in time, place and circumstances to be a proximate cause of plaintiffs' injuries," where accident occurred fifteen miles south of Petersburg, Virginia, many hours after the statutory violation occurred in the District of Columbia). In applying the doctrine of negligence per se and holding that plaintiffs have stated a cause of action upon which relief may be granted, we necessarily hold that plaintiffs have alleged an injury of the general type that the statute was intended to prevent, i.e., accidental injury to members of the public. To prevail at trial, however, plaintiffs must show that they, in fact, suffered such an injury and prove its proximity in "time, place and circumstances," id., to the alleged statutory violation.

As a final caveat we note that, in considering the issue of proximate causation, the jury is not free to find that the customer's consumption of the alcohol was an intervening cause of the harm to plaintiff, thereby negativing proximate cause as it relates to the tavern keeper's furnishing of the drinks. To permit such a conclusion would be to give force to the very argument that the rule of negligence per se is designed to preempt. The essence of that rule is that "the conduct of the defendant or his agent was negligent precisely because it created a risk that a third person would act improperly. In such circumstances, the fact that a third person does act improperly is not an intelligible reason for excusing the defendant." Ross, supra, 78 U.S.App.D.C. at 219, 139 F.2d at 16; accord, Gaither, supra, 131 U.S.App.D.C. at 221, 404 F.2d at 221; see also Ceco, supra, 441 A.2d at 944 ("The negligent act of a third party will operate as a superseding cause of the plaintiff's harm only where the original actor should not have anticipated that act."). It is our view that "[t]he rule we are adopting tends to make the streets safer by discouraging the hazardous conduct which the ordinance forbids. It puts the burden of the risk ... upon those who create it." Ross, supra, 78 U.S.App.D.C. at 219, 139 F.2d at 16.^[9]

Reversed and remanded.

NEBEKER, Associate Judge, Retired:

I dissent for two reasons. To an extent they are related, for in the end each dictates abstention by this court.

[1278] When one examines the basis for the majority holding, it, simply stated, is that the criminal proscription against permitting a drunk person (or one apparently so), from consuming an alcoholic drink is a bridge to impose a civil duty on an A.B.C. license holder. This is in derogation of ordinary rules respecting intervening or proximate cause.

I do not view the cases relied on by the majority (ante at 1274-1275) as requiring us to hold as we do. They are only examples of similar holdings in different contexts, some of which are better reasoned than others, but each representing an individual judicial judgment call. In this case, I would not, being free to choose, follow the course of expanding liability.

The first reason for my unwillingness is that we work a reasonless discrimination between victims of drunk drivers who are injured by one permitted to get drunk, but thereafter not permitted further consumption, and those whose primary malefactors were permitted further consumption of alcohol after becoming intoxicated. In my view, we fail in our obligation to administer justice fairly when we judicially create a cause of action for some innocent third parties by using a statute which operates to exclude others without reason.

My second reason for disagreement is based on the premise that this kind of remedy should be left to the political process. Once we turn the corner on license-holder liability based on D.C.Code § 25-121(b) (1981), we must logically go the next step when the case is presented to us, as it surely will be. The next step is quite simple. Under D.C.Code § 40-716(b) (1986), it is an offense to operate a motor vehicle with a certain level of blood alcohol. When that statute and the aider and abettor statute (D.C. Code § 22-105 (1981)) are taken together, a license holder, or a social host, who aids another to consume sufficient alcohol to become drunk before he drives off in his car, must be held to account under a complaint charging similarly to this one. Section 22-105, supra, makes a principal one who aids and abetts the principal offender "[i]n prosecutions for any criminal offense ... whatever the punishment may be." Id. These criminal statutes are surely as available as § 25-121(b), supra, to form a duty predicate for civil liability. Indeed, I suspect they are better than § 25-121(b), for they lack the baseless distinction between serving one who is drunk and aiding one in getting drunk and then operating a car.

To be sure, this next step at expanding liability would cure my first objection, viz., that we irrationally discriminate against some victims of drunk drivers. It is both reasons which prompt me to abstain from this holding. The political process is far better suited to decide whether and to what extent suppliers of alcohol, which lead to intoxication and injury to innocent third parties, are subject to suit.

If there is even a colorable argument that this question is for the legislature (and I think it is far stronger), then two judges of this court ought not to decide it alone. Surely the en banc court should apply itself to the task of deciding this issue of abstention or deference to the legislative process.

I dissent.

[1] Hubert B. Pair, Senior Judge, was originally a member of this division. Chief Judge Pryor was drawn to replace him pursuant to the Internal Operating Procedures of this court.

[2] Judge Nebeker was an Associate Judge of this court at the time of argument. His status changed to Associate Judge, Retired, on September 1, 1987.

[3] The only interest of Maryland that is implicated in this litigation, an interest in protecting public safety which we infer from its statutory prohibition on serving persons under the influence, is consistent with rather than in conflict with applying a District of Columbia rule of civil liability.

[4] See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).

[5]The Definitions section of the Alcoholic Beverage Control Act provides:

The words "alcoholic beverage" or "beverage" include the 4 varieties of liquor above defined (alcohol, spirits, wine, and beer) and every liquid or solid, patented or not, containing alcohol, spirits, wine, or beer and capable of being consumed by a human being. Any liquid or solid containing more than 1 of the 4 varieties above defined is considered as belonging to that variety which has the higher percentage of alcohol, according to the order in which they are above defined, except as provided in paragraph (3) of this section. The provisions of this section and of this chapter shall not apply to any liquid or solid containing less than one-half of 1 per centum of alcohol by volume, nor shall anything contained in this chapter be construed as affecting the manufacture of apple cider or the sale thereof.

D.C.Code § 25-103(5) (1981) (emphasis added). As the result of subsequent amendment, § 25-121(b) now reads, in pertinent part, "... consumption of alcoholic beverages ... by any intoxicated person, or any person of notoriously intemperate habits, or any person who appears to be intoxicated." D.C.Code § 25-121 (1987 Supp.) (emphasis added).

D.C.Code § 25-121(b) (1981) also prohibits sale of alcoholic beverages to minors. Violation of that provision of § 25-121(b) has not been alleged in this case.

[6] Under both of the above circumstances, i.e., where injury results from violation of a statute not having a safety purpose, or where injury results from an excusable violation of a safety statute, the rule of negligence per se is not applicable because it cannot be said that the statutory violation has frustrated the statutory purpose. See Leiken, supra, 445 A.2d at 1002-03; Gorris v. Scott, L.R. 9 Ex. 125 (1874) ("the damage is of such a nature as was not contemplated at all by the statute"; livestock swept overboard in storm after carrier failed to place animals in pens as required to prevent spread of disease), quoted in PROSSER & KEETON, supra, § 36 at 225.

[7] Since 1934, the evidence, of course, has mounted of the hazards associated with combining drinking and driving. See, e.g., H.R. REP. No. 867, 97th Cong., 2d Sess. 7, reprinted in1982 U.S. CODE CONG. & ADMIN. NEWS 3367, 3367 (half of all traffic fatalities are alcohol related).

Although the facts before us involve accidental injuries resulting from a motor vehicle accident, a similar analysis would be appropriate for other types of accidental injuries associated with the excessive consumption of alcohol.

[8] See, e.g., Nazareno v. Urie, 638 P.2d 671, 675-76 (Alaska 1981); Ontiveros, supra, 667 P.2d at 209-11; Largo, supra, 727 P.2d at 1108-09; Davis v. Shiappacossee, 155 So.2d 365, 367 (Fla. 1963); Ono v. Applegate, 62 Haw. 131, 612 P.2d 533, 539 (1980); Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847, 850-51 (1966); Lewis v. State, 256 N.W.2d 181, 187-89 (Iowa 1977); Pike v. George, 434 S.W.2d 626, 627-28 (Ky.1968); Klingerman v. SOL Corp. of Maine, 505 A.2d 474, 478 (Maine 1986); Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18, 19 (1968); Thaut, supra, 213 N.W.2d at 821-22; Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618, 625-26 (1973); Munford, Inc. v. Peterson, 368 So.2d 213, 217 (Miss.1979); Nehring v. LaCounte, 712 P.2d 1329, 1334 (Mont.1986); Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900, 901 (1965); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 8-9 (1959); Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269, 1275 (1982); Berkeley v. Park, 47 Misc.2d 381, 262 N.Y.S.2d 290, 293 (Sup.Ct.1965); Hutchens v. Hankins, 63 N.C.App. 1, 303 S.Ed.2d 584, 592-94, rev. denied, 309 N.C. 191, 305 S.E. 2d 734 (1983); Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 587 P.2d 75, 76-78 (1978) (in banc); Christiansen v. Campbell, 285 S.C. 164, 328 S.E. 2d 351, 354 (Ct.App.1985); Walz v. City of Hudson, 327 N.W.2d 120, 122-23 (S.D.1982); Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755, 757 (1964); El Chico, supra, 732 S.W.2d at 312-13; Young v. Caravan Corp., 99 Wash.2d 655, 663 P.2d 834, 837 (1983) (en banc); McClellan v. Tottenhoff, 666 P.2d 408, 413 (Wyo.1983).

[9] The dissent suggests that by our holding today we step upon a slippery slope, heading inexorably toward judicial recognition of social host liability in this jurisdiction. Like all slippery slope arguments, this one is fallacious because it presumes that courts are unable or unwilling to make the kinds of reasoned distinctions that it is precisely in the nature of courts to make. Some courts, in fact, have made a distinction that the dissent assumes will not be made, refusing to hold a social host or other non-licensee liable, although bound by precedent to recognize liability for the same acts had the defendant been a tavern keeper. See, e.g., Keckonen v. Robles, 146 Ariz. 268, 705 P.2d 945 (Ct.App.1985) (distinguishing Ontiveros, supra); Boutwell v. Sullivan, 469 So.2d 526 (Miss.1985) (distinguishing Munford, supra note 6); see also Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508 (Ct.App.1986) (distinguishing Christiansen, supranote 6).

Of course, the question of social host liability is not presented by this case and we suggest no view here as to that question.

David Jaroslawicz for appellants.

Franklin N. Meyer for Boy Scouts of America, Inc., respondent.

William P. Ford and Stuart C. Levene for Brothers of the Poor of St. Francis, Inc., respondent.

Chief Judge WACHTLER and Judges MEYER, KAYE and ALEXANDER concur with Judge SIMONS; Judge JASEN dissents and votes to reverse in a separate opinion.

[192] SIMONS, J.

Plaintiffs, Richard E. and Margaret Schultz, instituted this action to recover damages for personal injuries they and their sons, Richard and Christopher, suffered because the boys were sexually abused by defendant Edmund Coakeley and for damages sustained as a result of Christopher's wrongful death after he committed suicide. Coakeley, a brother in the Franciscan order, was the boys' school teacher and leader of their scout troop. Plaintiffs allege that the sexual abuse occurred while Coakeley was acting in those capacities and the causes of action before us on this appeal charge defendants Boy Scouts of America, Inc., and the Brothers of the Poor of St. Francis, Inc. (sued as Franciscan Brothers of the Poor, Inc.), with negligently hiring and supervising him.

Plaintiffs are domiciled in New Jersey and some of the injuries were sustained there. Thus, a choice-of-law issue is presented because New Jersey recognizes the doctrine of charitable immunity and New York does not. Defendants contend New Jersey law governs this litigation and that its courts have already determined that plaintiffs' claims are barred in a separate action against the Roman Catholic Archdiocese of Newark (see, Schultz v Roman Catholic Archdiocese, 95 NJ 530, 472 A2d 531). Following the rationale of Babcock v Jackson (12 N.Y.2d 473) and similar cases, we hold that New Jersey law applies and that plaintiffs are precluded from relitigating its effect on the claims they assert.

I

In 1978 plaintiffs were residents of Emerson, New Jersey, where their two sons, Richard, age 13, and Christopher, age 11, [193] attended Assumption School, an institution owned and operated by the Roman Catholic Archdiocese of Newark. By an agreement with the Archdiocese, defendant Brothers of the Poor of St. Francis, Inc., supplied teachers for the school. One of those assigned was Brother Edmund Coakeley, who also served as the scoutmaster of Boy Scout Troop 337, a locally chartered Boy Scout troop sponsored and approved by defendant Boy Scouts of America. Richard and Christopher attended Coakeley's class and were members of his scout troop.

In July 1978 Coakeley took Christopher Schultz to Pine Creek Reservation, a Boy Scout camp located in upstate New York near the Oneida County community of Foresport. The camp was located on land owned by Peter Grandy, who was also a resident of Emerson, New Jersey.^[1] The complaint alleges that while at the camp, Coakeley sexually abused Christopher, that he continued to do so when Christopher returned to Assumption School in New Jersey that fall and that he threatened Christopher with harm if he revealed what had occurred. The complaint also alleges that Coakeley sexually abused Richard Schultz and made similar threats to him during a scout trip to Pine Creek Reservation on Memorial Day weekend in 1978. Plaintiffs claim that as a result of Coakeley's acts both boys suffered severe psychological, emotional and mental pain and suffering and that as a result of the distress Coakeley's acts caused, Christopher Schultz committed suicide by ingesting drugs on May 29, 1979. They charge both defendants with negligence in assigning Coakeley to positions of trust where he could molest young boys and in failing to dismiss him despite actual or constructive notice that Coakeley had previously been dismissed from another Boy Scout camp for similar improper conduct.

The complaint contains four causes of action. In the first two, plaintiff Richard E. Schultz, as administrator of Christopher's estate, seeks damages for Christopher's wrongful death and for his psychological, emotional and physical injuries prior to death. In the third cause of action, plaintiff Richard E. Schultz, suing as father and natural guardian, seeks damages for similar personal injuries on behalf of his son Richard. In the fourth cause of action, plaintiffs seek damages for their own injuries, including destruction of their family life, expenditures for medical and psychological care and treatment, mental anguish and psychological injuries.

[194] After answering, defendants moved for summary judgment, urging that plaintiffs' claims were barred by New Jersey's charitable immunity statute (NJ Stat Ann § 2A:53A-7) and that plaintiffs were collaterally estopped from relitigating the application of the statute because of the prior New Jersey judgment. In opposition, plaintiffs contended that under applicable choice-of-law principles, New York should apply its law, not that of New Jersey, and, alternatively, that even if the New Jersey charitable immunity statute applies under choice-of-law rules, the New York courts should refuse to enforce it on public policy grounds. Special Term granted defendants' motions, severing plaintiffs' causes of action and dismissing the complaint against them on collateral estoppel grounds, implicitly finding New Jersey law applicable. A divided Appellate Division affirmed.

II

A

The choice-of-law question presented in the action against defendant Boy Scouts of America is whether New York should apply its law in an action involving codomiciliaries of New Jersey when tortious acts were committed in New York. This is the posture of the appeal although defendant is a Federally chartered corporation created exclusively for educational and charitable purposes pursuant to an act of Congress (see, 36 USC § 21) that originally maintained its national headquarters in New Brunswick, New Jersey, but moved to Dallas, Texas, in 1979. New Jersey is considered defendant's domicile because its national headquarters was in that State (see, Rosenbaum v Union Pac. R. R. Co., 2 How Prac [NS] 45, affd 100 N.Y. 617; 13 NY Jur 2d, Business Relationships, § 146, at 421). Its change of domicile after the commission of the wrongs from New Jersey to Texas, which no longer recognizes the doctrine of charitable immunity (see, Howle v Camp Amon Carter, 470 SW2d 629 [Tex 1971]), provides New York with no greater interest in this action than it would have without the change. Our decision recognizing a postaccident change in domicile in Miller v Miller (22 N.Y.2d 12) is distinguishable because in that case the defendant's domicile was changed to New York, which was the forum and also the plaintiff's domicile.

The question presented in the action against defendant Franciscan Brothers is what law should apply when the parties' different domiciles have conflicting charitable immunity rules. The Franciscan order is incorporated in Ohio and it is a domiciliary of that State (see, Sease v Central Greyhound Lines, 306 N.Y. 284, 286; [195] 13 NY Jur 2d, Business Relationships, § 142, at 416-417). At the time these causes of action arose Ohio, like New Jersey, recognized charitable immunity (see, Williams v First United Church, 40 Ohio App 2d 187, 318 NE2d 562, affd 37 Ohio St 2d 150, 309 NE2d 924 [1973]; Gibbon v Young Women's Christian Assn., 170 Ohio St 280, 164 NE2d 563 [1960]; but see, Albritton v Neighborhood Centers Assn. for Child Dev., 12 Ohio St 3d 210, 466 NE2d 867 [1984] [abolishing common-law doctrine of charitable immunity for nonhospital charities]). The Ohio rule denied immunity in actions based on negligent hiring and supervision, however (see, Gibbon v Young Women's Christian Assn., supra), whereas New Jersey does not (see, Schultz v Roman Catholic Archdiocese, 95 NJ 530, 472 A2d 531, supra). For this reason, no doubt, defendant Franciscan Brothers does not claim Ohio law governs and the choice is between the law of New York and the law of New Jersey.

As for the locus of the tort, both parties and the dissent implicitly assume it is New York because most of Coakeley's acts were committed here. Under traditional rules, the law of the place of the wrong governs all substantive issues in the action (see, Kaufman v American Youth Hostels, 5 N.Y.2d 1016), but when the defendant's negligent conduct occurs in one jurisdiction and the plaintiff's injuries are suffered in another, the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred (see, Poplar v Bourjois, Inc., 298 N.Y. 62; Conklin v Canadian-Colonial Airways, 266 N.Y. 244; Hunter v Derby Foods, 110 F.2d 970 [2d Cir]). Thus, the locus in this case is determined by where the plaintiffs' injuries occurred.

The first and fourth causes of action, the wrongful death of Christopher and plaintiffs' own psychological and other injuries respectively, allege injuries inflicted in New Jersey. New York's only interests in these claims are as the forum State and as the jurisdiction where the tortious conduct underlying plaintiffs' claims against defendants, i.e., the negligent assignment and failure to dismiss Coakeley, occurred. Standing alone, these interests are insufficient to warrant application of New York law, at least when the relevant issue is a loss-distribution rule, like charitable immunity, rather than one regulating conduct (cf. Long v Pan Am. World Airways, 16 N.Y.2d 337, 342-343). The second and third causes of action seek damages for the psychological, emotional and physical injuries suffered by Christopher and Richard Schultz, injuries which occurred in both New York and New Jersey, because a fair reading of the complaint indicates that both boys suffered injuries when Coakeley molested [196] them and also after they returned home. These two causes of action sufficiently implicate New York's interests to require a resolution of the choice-of-law problem in the case.

B

Historically, choice-of-law conflicts in tort actions have been resolved by applying the law of the place of the wrong. In Babcock v Jackson (12 N.Y.2d 473, supra), we departed from traditional doctrine, however, and refused to invariably apply the rule of lex loci delicti to determine the availability of relief for commission of a tort. In doing so, we applied New York law to an action involving New York parties in which recovery was sought for injuries received in an automobile accident in Ontario, Canada. Ontario's guest statute barred recovery by the plaintiff passenger but we refused to apply Ontario law in the New York action, holding that "controlling effect" must be given "to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation" (Babcock v Jackson, supra, at p 481). Employing this "grouping of contacts" and "interest analysis", we noted that New York was where the parties were domiciled, where the automobile involved was garaged, licensed and insured, where the guest-host relationship arose and where the trip began and was to end, whereas Ontario's only contact with the case was the "purely adventitious" occurrence of the accident there (see, Babcock v Jackson, supra, at pp 482-483). Key, however, was New York's interest in requiring a tort-feasor to compensate his guest for injuries caused by his negligence. That concern would have been completely thwarted if Ontario's laws were applied to the action, whereas the application of New York's law would not threaten the policy underlying Ontario's statute, its interest in preventing fraudulent claims against its defendants and their insurer (see, id., at pp 482-483).

The analysis was flexible and to the extent that it may have placed too much emphasis on contact-counting without specifying the relative significance of those contacts, the necessary refinements were added in later decisions of this court. In four of the five subsequent tort cases presenting the same Babcock-style fact pattern of common New York domiciliaries and a foreign locus having loss-distribution rules in conflict with those of New York we reached results consistent with Babcock and applied New York law (see, Tooker v Lopez, 24 N.Y.2d 569 [Michigan guest statute]; Miller v Miller, 22 N.Y.2d 12, supra [Maine damage limitation in wrongful death action]; Farber v Smolack, 20 N.Y.2d 198 [197] [North Carolina statute on vicarious liability of automobile owner for negligence of driver]; Macey v Rozbicki, 18 N.Y.2d 289 [Ontario guest statute]). In the fifth case, the first decided after Babcock, we applied the law of the foreign locus, including its restrictive guest statute (see, Dym v Gordon, 16 N.Y.2d 120). Although our opinion in Dym attempted to distinguish Babcock, we subsequently concluded that our reading of the Colorado guest statute in Dym was "mistaken" (see, Tooker v Lopez, 24 N.Y.2d 569, 575, supra). In each of the five cases, however, the court rejected the indiscriminate grouping of contacts, which in Babcock had been a consideration coequal to interest analysis, because it bore no reasonable relation to the underlying policies of conflicting rules of recovery in tort actions (see, Tooker v Lopez, supra, at p 576; Miller v Miller, supra, at pp 15-16). Interest analysis became the relevant analytical approach to choice of law in tort actions in New York. "[T]he law of the jurisdiction having the greatest interest in the litigation will be applied and * * * the [only] facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict" (Miller v Miller, supra, at pp 15-16; see also, Tooker v Lopez, supra, at pp 576-577; Macey v Rozbicki, supra, at pp 296-298 [Keating, J., concurring]). Under this formulation, the significant contacts are, almost exclusively, the parties' domiciles and the locus of the tort (see, Tooker v Lopez, supra, at pp 576-577; id., at pp 584-585 [Fuld, Ch. J., concurring]; Neumeier v Kuehner, 31 N.Y.2d 121, 128 [adopting the three governing rules proposed in Tooker, the first and third of which are pertinent to the facts of this appeal]).

Thus, under present rules, most of the nondomicile and nonlocus contacts relied on in Babcock v Jackson (supra), such as where the guest-host relationship arose and where the journey was to begin and end, are no longer controlling in tort actions involving guest statutes (see, Tooker v Lopez, supra, at pp 577, 579, n 2). Both Tooker and Neumeier continued to place some importance on where the automobile involved was insured (see, Babcock v Jackson, supra, at pp 482-484), but this is not inconsistent with the present rule because usually a defendant host's automobile will be insured in the State of his domicile and also because it reflects a recognition that the insurer, rather than the individually named defendant, is often "the real party in interest" (Miller v Miller, supra, at p 21). Insofar as issues of liability insurance might also be relevant in a case such as the one before us involving charitable immunity, the record provides no relevant information on the subject.

[198] These decisions also establish that the relative interests of the domicile and locus jurisdictions in having their laws apply will depend on the particular tort issue in conflict in the case. Thus, when the conflicting rules involve the appropriate standards of conduct, rules of the road, for example, the law of the place of the tort "will usually have a predominant, if not exclusive, concern" (Babcock v Jackson, supra, at p 483; see, Restatement [Second] of Conflicts of Law § 145 comment d, at 417-418) because the locus jurisdiction's interests in protecting the reasonable expectations of the parties who relied on it to govern their primary conduct and in the admonitory effect that applying its law will have on similar conduct in the future assume critical importance and outweigh any interests of the common-domicile jurisdiction (see, Babcock v Jackson, supra, at pp 483-484; Restatement [Second] of Conflict of Laws § 145 comment d, at 417-418; id. § 146 comments d, e, at 431-433; see also, Miller v Miller, 22 N.Y.2d 12, 19, supra). Conversely, when the jurisdictions' conflicting rules relate to allocating losses that result from admittedly tortious conduct, as they do here, rules such as those limiting damages in wrongful death actions, vicarious liability rules, or immunities from suit, considerations of the State's admonitory interest and party reliance are less important. Under those circumstances, the locus jurisdiction has at best a minimal interest in determining the right of recovery or the extent of the remedy in an action by a foreign domiciliary for injuries resulting from the conduct of a codomiciliary that was tortious under the laws of both jurisdictions (see, Tooker v Lopez, supra, at p 576; Miller v Miller, supra, at pp 18-19; Babcock v Jackson, supra, at p 482). Analysis then favors the jurisdiction of common domicile because of its interest in enforcing the decisions of both parties to accept both the benefits and the burdens of identifying with that jurisdiction and to submit themselves to its authority.^[2]

These considerations made the need for change in the lex loci delicti rule obvious in Babcock, but the validity of this interest analysis is more clearly demonstrated in the split domicile case of Neumeier v Kuehner (31 N.Y.2d 121, supra). In Neumeier we applied Ontario's guest statute in an action on behalf of an Ontario decedent against a New York defendant at least in part because the Ontario statute, which contained reciprocal benefits and burdens depending on one's status as either host or guest, was "obviously addressed" to Ontario domiciliaries such as [199] plaintiff's decedent (id., at pp 125-126). In Babcock New York had an important interest in protecting its own residents injured in a foreign State against unfair or anachronistic statutes of that State but it had no similar interest in Neumeier in protecting a guest domiciled in Ontario and injured there.

C

As to defendant Boy Scouts, this case is but a slight variation of our Babcock line of decisions and differs from them on only two grounds: (1) the issue involved is charitable immunity rather than a guest statute, and (2) it presents a fact pattern which one commentator has characterized as a "reverse" Babcock case because New York is the place of the tort rather than the jurisdiction of the parties' common domicile (see, Korn, The Choice-of-Law Revolution: A Critique, 83 Colum L Rev 772, 789).

Although most of our major choice-of-law decisions after Babcock involved foreign guest statutes in actions for personal injuries, we have not so limited them, but have applied the Babcock reasoning to other tort issues as well (see, Miller v Miller, 22 N.Y.2d 12, supra [damage limitation in wrongful death action]; Farber v Smolack, 20 N.Y.2d 198, supra [vicarious liability of automobile owner for negligence of driver]; Long v Pam Am. World Airways, 16 N.Y.2d 337, supra [survivor statute and wrongful death damages]; Oltarsh v Aetna Ins. Co., 15 N.Y.2d 111 [statute authorizing direct action against liability insurer]; see also, O'Connor v Lee-Hy Paving Corp., 579 F.2d 194 [2d Cir], cert denied 439 US 1034 [1978] [exclusivity of workers' compensation death benefits for industrial accident]; Rosenthal v Warren, 475 F.2d 438 [2d Cir] [damage limitation in wrongful death action], on remand 374 F Supp 522 [SDNY] [charitable immunity]). Nor is there any logical basis for distinguishing guest statutes from other loss-distributing rules because they all share the characteristic of being postevent remedial rules designed to allocate the burden of losses resulting from tortious conduct in which the jurisdiction of the parties' common domicile has a paramount interest. There is even less reason for distinguishing Babcock here where the conflicting rules involve the defense of charitable immunity (see, Rosenthal v Warren, 374 F Supp 522 [SDNY], supra; Restatement [Second] of Conflict of Laws § 145 comment d; id. § 168 comment b; Korn, supra, at 787, 824). Both plaintiffs and defendant Boy Scouts in this case have chosen to identify themselves in the most concrete form possible, domicile, with a jurisdiction that has weighed the interests of charitable tort-feasors and their victims and decided [200] to retain the defense of charitable immunity. Significantly, the New Jersey statute excepts from its protection actions by nonbeneficiaries of the charity who suffer injuries as a result of the negligence of its employees or agents (see, NJ Stat Ann § 2A:53A-7). Plaintiffs and their sons, however, were beneficiaries of the Boy Scouts' charitable activities in New Jersey and should be bound by the benefits and burdens of that choice. Additionally, the State of New Jersey is intimately interested in seeing that the parties' associational interests are respected and its own loss-distributing rules are enforced so that the underlying policy, which is undoubtedly to encourage the growth of charitable work within its borders, is effectuated.

Thus, if this were a straight Babcock fact pattern, rather than the reverse, we would have no reason to depart from the first Neumeier rule and would apply the law of the parties' common domicile. Because this case presents the first case for our review in which New York is the forum-locus rather than the parties' common domicile, however, we consider the reasons most often advanced for applying the law of the forum-locus and those supporting application of the law of the common domicile.

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 (see, Comments on Babcock v Jackson, A Recent Development in Conflict of Laws, 63 Colum L Rev 1212, 1222-1226, 1237-1238; Korn, supra, at 841, 962). 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 (see, Macey v Rozbicki, 18 N.Y.2d 289, 295, supra [Keating, J., concurring]; Dym v Gordon, 16 N.Y.2d 120, 133, supra [Fuld, J., dissenting]). They are subject to criticism, therefore, as being biased in favor of recovery. Second, on the facts of this case neither reason is relevant since the record contains no evidence that there are New York medical creditors or that plaintiffs are or will likely become wards of this State. 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.

[201] Conversely, there are persuasive reasons for consistently applying the law of the parties' common domicile. First, it significantly reduces forum-shopping opportunities, because the same law will be applied by the common-domicile and locus jurisdictions, the two most likely forums. Second, it rebuts charges that the forum-locus is biased in favor of its own laws and in favor of rules permitting recovery. Third, the concepts of mutuality and reciprocity support consistent application of the common-domicile law. In any given case, one person could be either plaintiff or defendant and one State could be either the parties' common domicile or the locus, and yet the applicable law would not change depending on their status. Finally, it produces a rule that is easy to apply and brings a modicum of predictability and certainty to an area of the law needing both.

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'" (Neumeier v Kuehner, supra, at p 128). 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^[3] surely would have been that the law of the [202] 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. Thus, we conclude that defendant Franciscan Brothers has met its burden of demonstrating that the law of New Jersey, rather than the law of New York, should govern plaintiffs' action against it.

III

Plaintiffs contend that even if the New Jersey charitable immunity statute is applicable to this action, it should not be enforced because it is contrary to the public policy of New York.

The public policy doctrine is an exception to implementing an otherwise applicable choice of law in which the forum refuses to apply a portion of foreign law because it is contrary or repugnant to its State's own public policy (see, Paulsen & Sovern, "Public Policy" in the Conflict of Laws, 56 Colum L Rev 969). The doctrine is considered only after the court has determined that the applicable substantive law under relevant choice-of-law principles is not the forum's law. Having found that, the court must enforce the foreign law "unless some sound reason of public policy makes it unwise for us to lend our aid" (Loucks v Standard Oil Co., 224 N.Y. 99, 110 [Cardozo, J.]).

The party seeking to invoke the doctrine has the burden of proving that the foreign law is contrary to New York public policy. It is a heavy burden for public policy is not measured by individual notions of expediency and fairness or by a showing that the foreign law is unreasonable or unwise (Loucks v Standard Oil Co., supra, at p 111). Public policy is found in the State's Constitution, statutes and judicial decisions and the proponent of the exception must establish that to enforce the foreign law "would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal" expressed in them (Loucks v Standard Oil Co., supra, at p 111; see also, Matter of Walker, 64 N.Y.2d 354; Shannon v Irving Trust Co., 275 N.Y. 95, 103). In addition, the proponent must establish that there are enough important contacts between the parties, the occurrence and the New York forum to implicate our public policy and thus preclude enforcement of the foreign law (see, Paulsen & Sovern, supra, at 981).^[4]

[203] When we have employed the exception in the past and refused to enforce otherwise applicable foreign law, the contacts between the New York forum, the parties and the transaction involved were substantial enough to threaten our public policy. Thus, in Kilberg v Northeast Airlines (9 N.Y.2d 34), we found the law of the place of tort, Massachusetts, appropriate to a wrongful death action but refused to apply its statutory limit on damages because it was contrary to New York public policy, expressed in our State Constitution, prohibiting limitations on such damages. Insofar as the decedent was a resident, who had purchased his ticket and boarded his flight in New York and the defendant carried on extensive operations here, New York's interest in providing its residents with full compensation for wrongful death was jeopardized and led us to reject the Massachusetts limitation.

Similarly, in Mertz v Mertz (271 N.Y. 466) and Straus & Co. v Canadian Pac. Ry. Co. (254 N.Y. 407), this State's public policy was seriously threatened because it was intimately connected to the parties and the transaction. In Mertz we refused to follow Connecticut law that permitted a wife to sue her husband for negligently inflicted injuries caused there because New York's law was just the opposite and the parties were both New York domiciliaries. In Straus & Co., we refused to enforce a contractual provision releasing the defendant shipper from liability for its own negligence, valid under otherwise applicable British law but invalid under the laws of New York, when the plaintiff was a New York company, the final place of shipment was New York, and the defendant had chosen to do business here by way of shipping goods into the State.

Thus, although New York discarded the doctrine of charitable immunity long ago (see, Bing v Thunig, 2 N.Y.2d 656, 667) and enforcement of New Jersey's statute might well run counter to our fundamental public policy, we need not decide that issue because there are not sufficient contacts between New York, the parties and the transactions involved to implicate our public policy and call for its enforcement.

[204] IV

Finally, defendants contend that inasmuch as New Jersey law governs this action, plaintiffs are estopped under the doctrine of third-party issue preclusion from relitigating the effect of the New Jersey charitable immunity statute by their earlier New Jersey court action.

The full faith and credit clause of the Federal Constitution requires the courts of each State to give to the judgments of other States the same conclusive effect between the parties as such judgments are given in the States in which they are rendered (Semler v Psychiatric Inst., 575 F.2d 922, 927 [DC Cir]; see, Durfee v Duke, 375 US 106, 109; Restatement [Second] of Conflict of Laws § 95). Our decision therefore will be determined by whether the courts of New Jersey would hold plaintiffs barred by the prior action.

New Jersey has adopted the general principles governing third-party issue preclusion set forth in Restatement (Second) of Judgments § 29 (see, State v Gonzalez, 75 NJ 181, 188-190, 380 A2d 1128, 1132; United Rental Equip. Co. v Aetna Life & Cas. Ins. Co., 74 NJ 92, 101, 376 A2d 1183, 1188). For collateral estoppel to apply, therefore, three criteria must be met: (1) the issue must actually have been litigated and determined by a valid and final judgment in a separate action, (2) that determination must have been essential to the judgment and (3) either the party to be precluded had a full and fair opportunity to litigate the issue in the prior proceeding or other circumstances do not justify affording him an opportunity to relitigate it (see, Restatement [Second] of Judgments §§ 27, 29; State v Gonzalez, supra, at pp 188-192, at pp 1132-1133; see also, Koch v Consolidated Edison Co., 62 N.Y.2d 548, 554-555).

The issue presented to us, whether plaintiffs' claims against these defendants are barred by the New Jersey charitable immunity statute, was actually litigated and determined by a final judgment of its courts. A comparison of plaintiffs' complaint in the New Jersey action and the one before us demonstrate that they are the same except for minor differences reflecting the different defendants. One of the specific issues contested in New Jersey was whether its statute provided immunity in actions alleging negligent hiring and supervision and the court dismissed the complaint (Schultz v Roman Catholic Archdiocese, 95 NJ 530, 472 A2d 531, supra). Moreover, plaintiffs have never disputed that defendants are charitable organizations entitled to the protection of the New Jersey statute, nor have they presented any facts warranting a conclusion that they [205] lacked a full and fair opportunity to litigate the issue in the prior action or that other circumstances justify according them an opportunity to relitigate it in New York. On the contrary, the record indicates that plaintiffs relied on their New Jersey action and vigorously pursued their claims there. Although they commenced this action approximately one month before the one in New Jersey, plaintiffs requested and obtained a stay of it pending final determination of their New Jersey action and they were given the opportunity to fully present their arguments against application of the charitable immunity statute before that State's highest court. Plaintiffs are correct that collateral estoppel would not apply if we applied New York law or refused to enforce the New Jersey statute on public policy grounds (see, State v Gonzalez, supra, at pp 188-192, at pp 1132-1133; Schwartz v Public Administrator, 24 N.Y.2d 65, 72; Restatement [Second] of Judgments § 29 [7]). We have resolved those issues against them, however.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

JASEN, J. (dissenting).

I respectfully dissent. In my view, the majority overstates the significance of New Jersey's interests in having its law apply in this case and understates the interests of New York. While I agree with much of the majority's general exposition of the rules governing conflicts of law, nevertheless I believe that its application of these rules to the facts of this case and the resulting analysis are uneven. By casting the issue almost exclusively in terms of New Jersey's law of charitable immunity and the policy purposes represented thereby, the majority preordains its decision that the application of New Jersey law would best serve the interests deemed relevant. A more balanced approach, which recognizes that the conflict in this case involves not only New Jersey's law of charitable immunity but also New York's law of charitable nonimmunity, and which accords a proper analysis and fairer significance to the policies underlying the latter, would dictate a different result. Because New Jersey's interests in having its law of charitable immunity apply are rather attenuated in this case and, by sharp contrast, New York's interests as the "locus-forum" in applying its rule of charitable nonimmunity are overriding — especially in light of the heinous nature of the alleged tortious conduct involved and the repugnancy of immunizing those responsible from liability — it is my view that New York law should govern this case. A brief highlighting of those factors which I believe to be most pertinent illustrates what, in my view, the majority has either understated or overlooked.

[206] New Jersey's interests, denominated by the majority as loss-distribution, are hardly pressing under the circumstances. While it is true that laws providing for charitable immunity typically are intended to serve the purpose of protecting and promoting the charities incorporated within a state's jurisdiction, that function is virtually irrelevant in this case. Presently, neither corporate defendant is a resident of New Jersey. The Brothers of the Poor of St. Francis (the Franciscan Brothers) has at all relevant times been a resident of the State of Ohio, a jurisdiction which recognizes only a limited charitable immunity that does not extend to negligence in the selection and retention of personnel. (Williams v First United Church, 40 Ohio App 2d 187, 318 NE2d 562, affd 37 Ohio St 2d 150, 309 NE2d 924; Cullen v Schmit, 139 Ohio St 194, 39 NE2d 146.) The Boy Scouts of America, although originally incorporated in New Jersey at the time of its alleged tortious conduct, has since relocated in Texas, a State which has wholly rejected charitable immunity. (Howle v Camp Amon Carter, 470 SW2d 629 [Tex].) While ordinarily a change in residence subsequent to the events upon which a lawsuit is predicated ought not to affect the rights and liabilities of the parties in order to avoid forum-shopping, there is no such reason to deny giving effect to the change in residence here. Rather, a defendant's post-tort change in residence — as opposed to that of a plaintiff — is often critical insofar as it affects state interest analysis. (See, Weintraub, Commentary on the Conflict of Laws § 6.28, at 331, 334 [2d ed]; Sedler, The Governmental Interest Approach to Choice of Law: An Analysis and a Reformulation, 25 UCLA L Rev 181, 241-242; Note, Post Transaction or Occurrence Events in Conflicts of Laws, 69 Colum L Rev 843, 865.) Indeed, as this court stated in Miller v Miller (22 N.Y.2d 12, 21-22): "To the extent that the [foreign State's] limitation evinced a desire to protect its residents in wrongful death actions, that purpose cannot be defeated here since no judgment in this action will be entered against a * * * resident [of that State. It] would have no concern with the nature of the recovery awarded against defendants who are no longer residents of that State and who are, therefore, no longer proper objects of its legislative concern. It is true that, at the time of the accident, the defendants were residents of [that State] but they would have no vested right to the application of the law of their former residence unless it could be demonstrated that they had governed their conduct in reliance upon it (Griffith v. United Air Lines, supra) — a reliance which is neither present nor claimed in the case at bar. Any claim that [the foreign State] has a paternalistic interest in protecting its residents [207] against liability for acts committed while they were in [that State] should they move to another jurisdiction, is highly speculative."

It simply cannot be disputed that New Jersey presently has a much diminished interest, if any at all, in shielding the Boy Scouts of America from liability — let alone the Franciscan Brothers which has never been a New Jersey resident. The majority does not question that conclusion, but merely states that the change in residence does not enhance New York's interest. (Majority opn, at p 194.) While the latter may be true in the abstract, the point, of course, is that New Jersey's interest in the application of its charitable immunity law has been substantially reduced.

Consequently, because the majority cannot in actuality rely upon New Jersey's interest in protecting resident charities — into which category neither corporate defendant now falls — the decision today is, in effect, predicated almost exclusively upon the plaintiffs' New Jersey domicile. What emerges from the majority's holding is an entirely untoward rule that nonresident plaintiffs are somehow less entitled to the protections of this State's law while they are within our borders. Besides smacking of arbitrary and injudicious discrimination against guests in this State and before our courts (see, Ely, Choice of Law and the State's Interest in Protecting Its Own, 23 Wm & Mary L Rev 173, 186-187; cf. Tooker v Lopez, 24 N.Y.2d 569, 575; Smith v Loughman, 245 N.Y. 486, 491-492, cert denied 275 US 560), such a position, without more, has severely limited, if any, validity in resolving conflicts questions. (See, Neumeier v Kuehner, 31 N.Y.2d 121, 131 [Breitel, J., concurring]; Rosenthal v Warren, 475 F.2d 438, 445 [2d Cir]; Juenger, Choice of Law in Interstate Torts, 118 U of Pa L Rev 202, 209-210; Weintraub, supra, § 6.23, n 13; Ausubel, Conflict of Laws Trends — Torts, 19 De Paul L Rev 684, 692; cf. Labree v Major, 111 RI 657, 306 A2d 808; Hurtado v Superior Ct., 11 Cal 3d 574, 522 P2d 666.) This is especially so where, as here, the defendants' contacts with the foreign State are insignificant for the purposes of interest analysis while, at the same time, the parties' contacts with New York are so clear and direct, and the resulting interests of this State so strong.

There can be no question that this State has a paramount interest in preventing and protecting against injurious misconduct within its borders. This interest is particularly vital and compelling where, as here, the tortious misconduct involves sexual abuse and exploitation of children, regardless of the residency of the victims and the tort-feasors. (See, New York v Ferber, 458 US 747, 756-760, on remand 57 N.Y.2d 256.) [208] Despite the majority's denial, New York's law in question is intimately connected to this overriding interest.

As the majority stresses, a charitable immunity law such as New Jersey's typically serves a loss-distribution purpose reflecting a legislative paternalism toward resident charities. But that is obviously not true with regard to a rule, such as New York's, which denies charitable immunity. Consequently, it is mistaken to adjudge the propriety of applying the latter law by giving weight only to the interests served by the former. (But see, e.g., majority opn, at p 200.) A closer attention to the specific policy purposes of New York's charitable nonimmunity rule is essential to a more appropriate resolution of the conflict.

These purposes, to which the majority refuses to accord any significance (see, e.g., majority opn, at pp 200, 201), are preventive, protective and compensatory. Indeed, in Bing v Thunig (2 N.Y.2d 656), where New York's prior rule of charitable immunity was abolished, this court held that "[i]t is not alone good morals but sound law that individuals and organizations should be just before they are generous, and there is no reason why that should not apply to charitable [institutions] * * * Insistence upon * * * damages for negligent injury serves a two-fold purpose, for it both assures payment of an obligation to the person injured and gives warning that justice and the law demand exercise of care." (Id., at p 666 [emphasis added].)

As previously discussed, there 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. (See additionally, Korn, The Choice of Law Revolution: A Critique, 83 Colum L Rev 772, 789, n 40.) 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. Indeed, this deterrence function of tort law, whether it be in the form of imposing liability or denying immunity, is a substantial interest of the locus state which is almost universally acknowledged by both commentators and the courts to be a prominent factor deserving significant consideration in the resolution of conflicts problems. (See, Cavers, The Choice of Law Process, at 144; Weintraub, supra, § 6.10, at 288; Horowitz, The Law of Choice of [209] Law in California — A Restatement, 21 UCLA L Rev 719, 757; Baade, Counter-Revolution or Alliance for Progress? Reflections on Reading Cavers, The Choice of Law Process, 46 Tex L Rev 141, 156; Restatement [Second] of Conflict of Laws § 145 comment c; Rosenthal v Warren, 475 F.2d 438, 445, supra; Bray v Cox, 39 AD2d 299, appeal dismissed 33 N.Y.2d 789; Hurtado v Superior Ct., 11 Cal 3d 574, 522 P2d 666, supra; Gagne v Berry, 112 NH 125, 290 A2d 624; Hunker v Royal Indem. Co., 57 Wis 2d 588, 204 NW2d 897.) While the majority mentions New York's interest in deterrence, it dismisses that interest in short fashion by referring to the "rule in conflict" as being "loss-allocating rather than conduct-regulating." (See, majority opn, at p 200.) Of course, there is not one but two rules at issue, and the majority's characterization is accurate only with regard to New Jersey's law granting immunity, not with regard to New York's rule denying the same. (Bing v Thunig, supra, at p 666.)

Moreover, New York's strong interest in deterring injurious misconduct, as well as in providing compensatory justice and protection to persons victimized by wrongdoing within this State, is reflected in the traditional principle of lex loci which, despite the majority's sub silentio disavowal, remains in this State "the general rule in tort cases to be displaced only in extraordinary circumstances". (Cousins v Instrument Flyers, 44 N.Y.2d 698, 699; see also, Neumeier v Kuehner, 31 N.Y.2d 121, 129, 131-132, supra; Tooker v Lopez, 24 N.Y.2d 569, 585, supra.) Indeed, despite the so-called "choice of law revolution" (see, Korn, supra), lex loci is still acknowledged almost universally as a central factor in determining the state, or states, in which the significant interests lie. (See, Restatement [Second] of Conflict of Laws § 145 [2] [a], [b]; § 146.) This rule ought not to be applied mechanically or rigidly to reach absurd results. But, neither ought it to be disregarded indiscriminately, without giving due consideration to the nature or extent of the relationship which accrues between the tort in question and a particular jurisdiction because that jurisdiction is the locus state. (See, Reese, The Second Restatement of Laws Revisited, 34 Mercer L Rev 501, 513-515.)

Here, there are no extraordinary circumstances justifying displacement of the usual rule of lex loci and the consequent disregard of New York's interest as the jurisdiction in which the infant plaintiffs were victimized. The majority merely discounts New York's interests as the locus state by characterizing the parties' contacts in New York as "only isolated and infrequent". Reliance on such characterization, however, is both factually [210] and legally misplaced. The infant plaintiffs' visit to New York with defendants' tort-feasor was entirely deliberate, planned and not merely transitory. They visited in order to remain for a period of time. Defendants are alleged to have permitted their tort-feasor to take the children into New York, failed to supervise him while the children were in his care in New York, authorized or sponsored the scouting activity at a campground in New York which they approved, and failed to prevent the sexual abuse of the children taking place in New York. The nexus of the parties and the alleged torts with New York can hardly be gainsaid.

This is clearly not a case in which the locus can be discounted as purely fortuitous or adventitious. (Cf. Long v Pan Am. World Airways, 16 N.Y.2d 337, 342, n 3; Babcock v Jackson, 12 N.Y.2d 473, 483; Kilberg v Northeast Airlines, 9 N.Y.2d 34, 39; contrast with, Dym v Gordon, 16 N.Y.2d 120, 125.) The infant plaintiffs and the defendants' tort-feasor were not merely in transitu in New York. Rather, they were here for a stay, albeit a short one, and as such they deliberately submitted themselves to the protections and responsibilities of this State's laws which should now govern the consequences of the tortious conduct committed while within New York's borders.

Contrary to what the majority states, it is hardly clear that the parties' only reasonable expectation was that New Jersey's law would apply despite the contacts with this State. Indeed, it would surely seem that the parties who came to New York, and those who sponsored their visit here, would have been quite surprised to learn that their conduct while in New York, or that which had a direct impact in New York, was not governed by the laws of this State. In any event, this court has unequivocably rejected the notion that the fictional expectation of the parties should determine the choice of law in tort cases. (Tooker v Lopez, supra, at p 577; Miller v Miller, 22 N.Y.2d 12, 20, supra; see also, Cavers, The Choice of Law Process, 119, 302, supra.) Consequently, in my view, the majority does not adequately explain why the law of New York, the locus state, ought not to govern this case.

Additionally, apart from the foregoing, I believe that this court ought not to apply New Jersey's law of charitable immunity by reason of its incompatibility with this State's settled public policy. Almost 30 years ago, when this court abolished charitable immunity for this State, we explained that the rule was inherently incongruous, contrary to both good morals and sound law, out of tune with modern day needs, unfair and [211] confused. (Bing v Thunig, 2 N.Y.2d 656, at pp 663, 666-667, supra.) Surely, a rule deemed so archaic and anachronistic by this court ought not now to be given effect and, thereby, insulate defendants from whatever responsibility they should bear for the heinous acts of misconduct performed in this State.

Indeed, this court has not hesitated in the past to refuse a request to apply a foreign law considered contrary to established public policy. We have held unequivocally that where a conflict exists, this State's public policy prevails. (Erlich-Bober & Co. v University of Houston, 49 N.Y.2d 574, 580; see also, Zeevi & Sons v Grindlays Bank [Uganda], 37 N.Y.2d 220, 227; Kilberg v Northeast Airlines, 9 N.Y.2d 34, 40, supra.) Likewise, the commentators have recognized the validity, indeed the wisdom and propriety of the forum state's refusal, on public policy grounds, to apply an anachronistic or aberrant rule of the foreign State whose law would otherwise apply. (See, e.g., Weintraub, supra, §§ 6.6, 6.27; Leflar, American Conflicts Law § 107, at 214 [3d ed]; Freund, Chief Justice Stone and The Conflict of Laws, 59 Harv L Rev 1210, 1216; Paulsen & Sovern, "Public Policy" in the Conflict of Laws, 56 Colum L Rev 969; Cheatham & Reese, Choice of the Applicable Law, 52 Colum L Rev 959, 980; Restatement [Second] of Conflict of Laws § 6 [2] [b], [e]; Juenger, supra, at 230-235.) Similarly, the courts of other jurisdictions have noted the imperative of avoiding application of a foreign state's law that is repugnant to the forum state's public policy or that is fairly deemed to be obsolete or senseless. (See, e.g., Clark v Clark, 107 NH 351, 355, 222 A2d 205, 209; Conklin v Horner, 38 Wis 2d 468, 484-485, 157 NW2d 579, 587; see also, Tiernan v Westext Transp., 295 F Supp 1256; Skahill v Capital Airlines, 234 F Supp 906, 907; Schneider v Nichols, 280 Minn 139, 158 NW2d 254; Mitchell v Craft, 211 So 2d 509 [Miss]; Arnett v Thompson, 433 SW2d 109 [Ky].)

As this court has already held, the charitable immunity law is one which is anachronistic, obsolete and senseless, and it appears that there is virtual judicial unanimity among the States that this is so. (See, Prosser and Keeton, Torts § 133, at 1070 [5th ed]; Ann., 25 ALR2d 29; 25 ALR4th 517; see also, Restatement [Second] of Torts § 895E, providing that charities ought not to be immunized.) It is not surprising, therefore, that other courts which have considered the immunity doctrine in a conflict of laws context have held that its application should be avoided as violative of New York's public policy. (See, e.g., Rosenthal v Warren, 374 F Supp 522, 525-526; Rakaric v Croatian Cultural Club, 76 AD2d 619; Dowd v Boy Scouts of Am., [212] NYLJ, Mar. 21, 1984, p 13, col 1 [Trial Term, Kings County]; cf. Pearson v Northeast Airlines, 309 F.2d 553, 561.) This court ought now to hold the same. Having already held that charitable immunity is "out of tune with the life about us, at variance with modern-day needs and with concepts of justice and fair dealing" (Bing v Thunig, supra, at p 667 [emphasis added]), it would now be incongruous, in my view, for this court to apply it here to deny compensatory justice to nonresidents who were injured while vacationing in New York.

Finally, I find no merit to defendants' arguments for the application of collateral estoppel. First, as the majority acknowledges, collateral estoppel is not a bar to a second action in a different forum where the latter applies its own law or refuses to give effect to the law of the first forum on public policy grounds. (See, Gilberg v Barbieri, 53 N.Y.2d 285, 292; Restatement [Second] of Judgments § 29.) Inasmuch as New York law should be applied in this case by reason of this State's significant interests and because application of New Jersey's law would contravene this State's public policy, collateral estoppel is inapplicable. Secondly, plaintiffs' allegations, the parties, and the precise issue in this litigation — i.e., whether New York law provides plaintiffs with a remedy for injuries suffered in this State from defendants' alleged tort-feasance — are not the same as those involved in the prior litigation in New Jersey. (See, Schultz v Roman Catholic Archdiocese, 95 NJ 530, 472 A2d 531.) Necessarily then, the prerequisites to the application of collateral estoppel have not been satisfied. (See, Ryan v New York Tel. Co., 62 N.Y.2d 494, 500-501; Schwartz v Public Administrator, 24 N.Y.2d 65, 71.)

For all these reasons, I would reverse the order of the Appellate Division, apply the law of New York denying immunity to defendant charities, and permit plaintiffs to proceed on their complaint.

Order affirmed, with costs.

[1] Edmund Coakeley, Peter Grandy and the Pine Creek Reservation were also named as defendants in the action. Grandy died after it was commenced and Coakeley never appeared.

[2] New York's rule holding charities liable for their tortious acts, or its rule of nonimmunity as the dissent characterizes it, is also a loss-allocating rule, just as New Jersey's charitable immunity statute is.

[3] As the dissent notes, we rejected the notion that the parties' reasonable expectations of the applicable law was determinative in Miller v Miller (22 N.Y.2d 12) and Tooker v Lopez (24 N.Y.2d 569). Our discussion here is limited to application of the "uncertainty" standard of the third of the Neumeier rules (see, Neumeier v Kuehner, 31 N.Y.2d 121, 128-129) to defendant Franciscan Brothers.

[4] The United States Supreme Court has recently reaffirmed that "the Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy" (Nevada v Hall, 440 US 410, 422). It has also stated unequivocally that for a State to either choose its substantive law or refuse to apply a sister State's law "in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair" (Allstate Ins. Co. v Hague, 449 US 302, 313; see, id., at p 308, and n 10; see also, John Hancock Mut. Life Ins. Co. v Yates, 299 US 178; Home Ins. Co. v Dick, 281 US 397). There thus is some doubt whether we could constitutionally choose to apply New York law in this case although in view of our disposition we need not decide the question.

[885] Lindquist & Vennum and Norman L. Newhall, and Harry C. Piper, III, Wright, Roe & Schmidt, Minneapolis, for appellant.

Geraghty, O'Loughlin & Kenney and Robert M. Mahoney, St. Paul, for respondents.

Heard before YETKA, SCOTT and WAHL, JJ., and considered and decided by the court en banc.

SCOTT, Justice.

This is an appeal by defendant Thorwald Brown from an order of the district court denying defendant's motions for dismissal and summary judgment and granting plaintiff Lisa Blamey's motion to strike inter alia defendant's defense of lack of personal jurisdiction. The district court also certified a choice of law issue as being important and doubtful pursuant to Rule 103.03(i) of the Rules of Civil Appellate Procedure. We affirm the district court's decision of the jurisdictional issue and remand for proceedings consistent with this opinion.

On the evening of October 23, 1974, plaintiff Lisa Blamey, a 15-year-old, attended a beer party in the Twin Cities area given by Patrick Michael (Mike) Martin, a 17-year-old. The party broke up at about 11 p. m. after the beer supply had been exhausted. A group from the party, including plaintiff, got into Martin's sister's car and Martin decided that they should go to Wisconsin since liquor stores in the Twin Cities had closed by that time. He said he knew of a place in Wisconsin where beer could be obtained at that hour.

Accompanied by the plaintiff, Martin drove the car to Hudson, Wisconsin, where he purchased two twelve packs of strong beer at the Overshoe Club at approximately 1 a. m. At about 4 a. m., the car was involved in a one-car accident in Minnesota in which plaintiff was seriously injured.

At the time of the accident, plaintiff and Martin were residents of Minnesota. The Overshoe Club, also known as Ted Brown's Liquors, operated under a Class B liquor license issued by the city of Hudson, Wisconsin. The establishment was solely [886] owned by defendant Thorwald Brown, then a Wisconsin resident, who has resided in Arizona since 1976.

The Overshoe Club sold intoxicating liquor and fermented malt beverages both on- and off-sale. The Club is located just off Interstate 94, within 15 miles of the Twin Cities area and is one of the first liquor establishments one reaches after exiting from the Interstate. It is located on the main street of Hudson, Wisconsin. Hudson is located on the Minnesota-Wisconsin border and the Twin Cities and Hudson are connected by the Interstate highway.

The Club is a neighborhood bar with no live entertainment, juke box, or game machines. The facility, which consists of a bar and three tables, could accommodate about 20 people. Defendant neither advertised in Minnesota nor attempted to attract Minnesota residents or young people to his establishment. He had no business connections in Minnesota and purchased the entire inventory for the bar in Wisconsin. Since defendant did not operate his establishment in Minnesota or any other state which had a similar civil damage act, Brown had not procured liquor liability insurance.

Plaintiff brought the present action in Minnesota district court, alleging that defendant or his employees sold intoxicating liquors to Martin, a minor, in violation of, inter alia, the Minnesota Civil Damage Act, Minn.St. 340.95, and the Minnesota common law of negligence. The complaint was claimed to have been served pursuant to Minnesota's long-arm statute, Minn.St. 543.19, subd. 1(c). Defendant's answer included an allegation that the Minnesota district court lacked personal jurisdiction over the defendant and plaintiff moved to strike this defense. Defendant also sought an order to dismiss the complaint on jurisdictional grounds and summary judgment. The district court granted plaintiff's motion to strike the jurisdictional defense and denied defendant's motions.

On appeal, defendant raises the issue of whether the Minnesota district court erred in holding that it had personal jurisdiction over him. The district court also certified the following issue to us as being important and doubtful pursuant to Rule 103.03(i) of the Rules of Civil Appellate Procedure: "Whether Minnesota's Civil Damage Act can be applied to impose liability on a Wisconsin bar owner for an illegal sale of intoxicating liquors allegedly made at his place of business in Wisconsin." The only issues on appeal then are the jurisdictional and choice of law issues.

1. To establish personal jurisdiction over a nonresident defendant, it must be shown that such is authorized by the terms of a statute and is consistent with the due process guarantees of the constitution. All Lease Co., Inc. v. Betts, 294 Minn. 473, 199 N.W.2d 821 (1972). The statute under which plaintiff claims personal jurisdiction is Minn.St. 543.19, subd. 1(c), which provides in part:

"* * * As to a cause of action arising from any acts enumerated in this subdivision, a court of this state with jurisdiction of the subject matter may exercise personal jurisdiction over any * * * non-resident individual * * * in the same manner as if * * * he were a resident of this state. This section applies if * * * the * * * non-resident individual:

* * * * * *

"(c) Commits any tort in Minnesota causing injury or property damage * * *."

Defendant contends that subdivision 1(d) and not 1(c) governs the present action. Subdivision 1(d) allows the exercise of personal jurisdiction over a nonresident if he:

"(d) Commits any tort outside of Minnesota causing injury or property damage within Minnesota, if, (1) at the time of the injury, solicitation or service activities were carried on within Minnesota by or on behalf of the defendant, or (2) products, materials or things processed, serviced or manufactured by the defendant [887] were used or consumed within Minnesota in the ordinary course of trade."^[1]

The constitutional due process standards applicable to this case are contained in Aftanase v. Economy Baler Co., 343 F.2d 187, 197 (8 Cir. 1965), and Franklin Mfg. Co. v. Union Pacific R. Co., 297 Minn. 181, 210 N.W.2d 227 (1973). See, also, Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). According to these decisions, the following criteria are to be applied when ascertaining whether jurisdiction over the person complies with due process: (1) The quantity of contacts with the forum state, (2) the nature and quality of the contacts, (3) the source and connection of the cause of action with those contacts, (4) the interest of the forum state in providing a forum, and (5) the convenience of the parties. Defendant contends that these factors when applied to the present situation mandate a finding of no personal jurisdiction in Minnesota.

Both the statutory and the constitutional issues relating to jurisdiction can be resolved on the basis of our recent decision in Anderson v. Luitjens, Minn., 247 N.W.2d 913 (1976), the facts of which closely parallel the facts of the case at hand. In Anderson, plaintiff Ross Anderson was injured in an automobile accident which occurred in Minnesota approximately 3 miles north of the Minnesota-Iowa border. Anderson was a passenger in the car owned by Luitjens and driven by Wendy Johnson. Prior to the accident, 17-year-old Johnson had been served alcoholic beverages at defendant Charles Denker's tavern in Lake Park, Iowa. Lake Park is about 3 miles south of the state border line and about 10 miles from the accident site.

Anderson brought an action against Denker and others in Minnesota district court. That court ruled that Denker was not subject to in personam long-arm jurisdiction of a Minnesota court. In reversing the district court, we stated:

"* * * Under traditional concepts of territoriality and proper jurisdiction, Minnesota courts would not have been able to entertain this case. But with the adoption of long-arm statutes such as those passed in Minnesota, thinking on the territoriality of law has given way to new jurisdictional ideas which, in our view, make the assertion of jurisdiction in this case consistent with traditional notions of fair play and substantial justice." Minn., 247 N.W.2d 918.

In reaching this decision, we held that Minn.St. 543.19, subd. 1(c), was applicable to the facts of the case, stating that the test for whether or not a tort has occurred "in Minnesota" depends on whether damage from the alleged tortious conduct resulted in Minnesota. In the present case, defendant does not dispute that the injury to the plaintiff occurred in Minnesota and has presented no compelling argument why section 1(c) of Minn.St. 543.19 should not govern the present situation. We thus find no reason to abandon the principles set forth in Anderson on this point, and hold that section 1(c), and not 1(d), is applicable to this case.

In Anderson, we then considered the due process aspects of the case and applied the five criteria set forth in Aftanase v. Economy Baler Co., supra, and Franklin Mfg. Co. v. Union Pacific R. Co., supra. As to the first criterion, the quantity of the contacts, we noted that Denker's main tangible contact with Minnesota was the fact that, according to Denker's own estimate, 8 percent of his business consisted of sales to Minnesota residents. Unlike Denker, the defendant herein has admitted no specific percentage of business with Minnesota residents. [888] He contends that he did not know the residence of each of his customers but does not deny that he did business with Minnesotans. The record, however, shows that defendant's bar and off-sale liquor business was located on the main street of a border town close to an interstate highway. The Wisconsin laws regulating Brown's business allowed him to keep his off-sale enterprise open until 2 a. m., while off-sale liquor establishments located in Minnesota cities of the first class (which includes St. Paul and Minneapolis) and for a radius of 15 miles around such cities were required by Minnesota law to close at 8 p. m. — six hours before defendant was required by Wisconsin law to close.^[2] These facts — the proximity to the state border, an interstate highway, and a large urban area and Wisconsin's more liberal liquor regulations — give rise to a reasonable inference that Brown had sufficient contacts with Minnesota residents so that the exercise of jurisdiction is reasonable, even though a specific percentage of business with Minnesotans cannot be identified.

The next factor we considered in Anderson was the source and connection of the cause of action with the contacts. We noted that the legal age for drinking alcoholic beverages in Iowa at the time of Anderson's accident was 19, while the legal age in Minnesota was 21. We commented:

"* * * This difference was bound to attract young Minnesotans to Iowa's nearby establishments. From this it appears that a sufficiently large percentage of Denker's patrons were Minnesota residents for it to have been reasonable for him to foresee both that serving alcoholic beverages to a minor or to a person already intoxicated might lead to consequences such as those which resulted here and that those consequences might occur in Minnesota." Minn., 247 N.W.2d 916.

While the parties to the present action agree that the drinking age in both Minnesota and Wisconsin was 18 at the time of the accident, the difference in the hours liquor establishments were allowed to remain open, previously discussed, was bound to attract Minnesota minors to Wisconsin. In fact, in the present case, Martin's knowledge of this situation was the initial reason the group of young people headed to Wisconsin to make their purchase.

The interest of the state in providing a forum was the next standard discussed in Anderson, wherein we concluded that Minnesota had a sufficiently strong interest. Minnesota's interest is equally strong in the present case. Plaintiff is a lifelong Minnesota resident, who sustained injuries in Minnesota, resulting in the accumulation of hospital and physicians' bills with Minnesota creditors.

As to the final factor, the convenience of the parties, defendant argues that Minnesota is an inconvenient forum since he is now retired and permanently resides in Arizona. This fact, however, militates against defendant's interests. Since he now lives in Arizona, Wisconsin is not a convenient forum for any of the parties, and it is no more inconvenient for the defendant to participate in a trial in Hennepin County, Minnesota, than it would be for him to participate in a trial in Hudson, Wisconsin, a short distance from Hennepin County across the state border.

Consequently, on the basis of Anderson v. Luitjens, supra, we are compelled to hold that the district court properly asserted jurisdiction over defendant.

2. Pursuant to Rule 103.03(i) of the Rules of Civil Appellate Procedure, the district [889] court certified to us the issue of whether Minnesota's Civil Damage Act, Minn.St. 340.95, can be applied to impose liability on defendant, a Wisconsin bar owner. Minn.St.1974, § 340.95, provides:

"Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, has a right of action, in his own name, against any person who, by illegally selling, bartering or giving intoxicating liquors, caused the intoxication of such person, for all damages, sustained; and all damages recovered by a minor under this section shall be paid either to such minor or to his parent, guardian, or next friend, as the court directs; and all suits for damages under this section shall be by civil action in any court of this state having jurisdiction thereof."

At the time of the accident, Minn.St.1974, § 340.73, made it illegal to sell or give intoxicating liquor to any person under the age of 18. Minnesota's Act thus imposed strict liability upon anyone who sold or gave intoxicating liquor, including the type of beer sold to Martin, to any person under 18.

Wisconsin's civil liability statute, which defendant contends is the applicable law, is more restrictive than Minnesota's Act. Under Wis.St.Ann. 176.35, a person injured as the result of the intoxication of "any minor or habitual drunkard" has a right of action only against any person who has been "notified or requested in writing" by certain relatives of the minor or drunkard or government officials "not to sell or give intoxicating liquors to him and who, notwithstanding such notice or request, shall knowingly sell or give away intoxicating liquors, thereby causing the intoxication of such minor or drunkard." It is undisputed in this case that the notice required by the Wisconsin statute was not given and therefore plaintiff may not maintain a cause of action based upon it. See, Farmers Mutual Auto. Ins. Co. v. Gast, 17 Wis.2d 344, 117 N.W.2d 347 (1962). Thus, the choice of law in this case is "outcome determinative" since a conflict between the laws of Minnesota and Wisconsin exists. See, Myers v. Government Employees Ins. Co., 302 Minn. 359, 225 N.W.2d 238 (1974).

Defendant argues, however, that it is unnecessary to invoke the choice of law principles since the legislature did not intend the Minnesota Civil Damage Act to impose liability upon a Wisconsin bar owner for an allegedly illegal sale of intoxicating liquor which took place in Wisconsin. Plaintiff asserts that our Act is applicable to "any person" who makes an illegal sale of intoxicating liquor regardless of where that person engages in business.^[3] We agree with defendant.

While our Civil Damage Act is silent as to whether or not it imposes liability upon non-Minnesota liquor vendors, it seems only logical that the legislature intended the Act to be applicable only to Minnesota vendors who make illegal sales within Minnesota, and not to out-of-state liquor vendors.

Our Act, Minn.St. 340.95, is only one of over 100 provisions codified in Minn.St. Ch. 340 dealing with intoxicating liquors. The provisions contained in Chapter 340 constitute a comprehensive scheme for regulating Minnesota's liquor industry. Chapter 340 regulates such matters as licensing, retailing, wholesaling, age of consumption, importation, hours and days of sale, advertising, and taxation.

When viewed in light of these other provisions of Chapter 340 which regulate the Minnesota liquor industry, it is apparent that our Civil Damage Act was intended to be applicable only to Minnesota vendors. We feel the Minnesota legislature did not intend to impose strict liability under our [890] Act on Wisconsin bar owners any more than it intended the licensing or taxation provisions of Chapter 340 to be applicable across the state boundary. Consequently, we hold that the Minnesota Civil Damage Act cannot be applied to impose liability on a Wisconsin bar owner for an illegal sale of intoxicating liquor, especially where the sale was made in Wisconsin.^[4]

3. Although we have determined that Minnesota's Civil Damage Act is not operative in this case, the issue of whether Minnesota's theory of common-law negligence may be invoked remains. Two cases are relevant to this consideration — Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973), and Fitzer v. Bloom, Minn., 253 N.W.2d 395 (1977).

In Trail, supra, we held that a common-law negligence action would lie against a commercial vendor who illegally furnished a "nonintoxicating malt beverage" (3.2 beer). We expressly stated in Trail that the holding applied only to the illegal sale of 3.2 beer, which is not covered by the Civil Damage Act.

Subsequently, in Fitzer v. Bloom, supra, we considered "whether the common-law principles of Trail are to be extended into areas already covered by the Civil Damage Act or whether, by enacting the Civil Damage Act, the legislature has preempted the field." After citing Trail, we stated:

"* * * Since the legislature has provided a remedy for the illegal sale of intoxicating liquor in the Civil Damage Act, the legislature has preempted the field and has provided the exclusive remedy in the act. A common-law cause of action for negligence will only be allowed where the act does not apply." Minn., 253 N.W.2d 403. (Italics supplied.)

In the present case, the legislature obviously has not preempted the field since, as was previously resolved, our Act does not apply to a non-resident vendor. In light of our statements in Fitzer, supra, we hold that a common-law action for negligence lies in the case at hand since the Civil Damage Act is not applicable.

4. The final issue to be resolved is whether the common law of Minnesota or Wisconsin should be applied. Contrary to Minnesota's limited rule of common-law liability, Wisconsin allows no common-law action. E. g., Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566 (1970).

The factors to be considered in resolving this conflict were adopted in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973). The approach adopted in Milkovich was taken from a proposal of Professor Robert Leflar in Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966), and involves the application of five "choice-influencing considerations": (1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interest; and (5) application of the better rule of law. The third consideration — simplification of the judicial task — has little application to the present situation, since any court is fully capable of administering Wisconsin's rule of non-liability. See, Milkovich v. Saari, supra.

Normally, the first consideration — predictability of result — is relatively unimportant in tort cases. Milkovich v. Saari, supra. It, however, acquires a greater importance in this case. This factor includes the idea that parties should know the legal consequences of their acts at the time they engage in a transaction. Leflar, Choice-Influencing Considerations in Conflicts Law, [891] 41 N.Y.U.L.Rev. 267, 282 (1966). In the present situation, defendant failed to procure liquor liability insurance since he assumed that only the laws of Wisconsin created his liability. These laws impose no liability upon him in the present case and thus if Minnesota law is applied some injustice will result to the defendant since the legal ramifications of his actions were not predictable to him at the time he acted.

The maintenance-of-interstate-order consideration includes the requirement that the state whose laws are ultimately applied have sufficient contacts with the facts in issue. Milkovich v. Saari, supra. Here, Minnesota has strong contacts with the facts. The residence of the plaintiff and her creditors is in Minnesota. Her journey on the night of the accident started in Minnesota and ended here also. Minnesota thus has sufficient contacts with the facts of the case. On the other hand, some ruffling of interstate relations might occur if Wisconsin law is applied and consequently maintenance of interstate order might be affected.

It is clear that Minnesota's governmental interest will be advanced by application of Minnesota law. Minnesota has a strong interest in compensating resident accident victims and a substantial interest in assuring that Minnesota creditors are paid. This consideration therefore strongly favors invoking Minnesota law.

The final consideration — the better rule of law — firmly supports the application of Minnesota's common law. In Trail v. Christian, supra, we expressly disapproved of the Wisconsin case, Garcia v. Hargrove, supra, which reaffirmed the Wisconsin common-law rule of non-liability. As between Wisconsin's law which provides no remedy and our law which does provide a remedy, we are convinced Minnesota has the better rule of law.

The correlation of these five considerations results in the conclusion that Minnesota's common law should be applied. The only consideration which weighs strongly in defendant's favor is the first — predictability of result. The maintenance-of-interstate-order consideration does not favor one state's law or the other, whereas the considerations of Minnesota's governmental interests and the better rule of law tip the scales in favor of the application of our own common law.

We therefore affirm the district court and remand for proceedings consistent with this opinion.

Affirmed and remanded.

SHERAN, C.J., took no part in the consideration or decision of this case.

[1]The Minnesota Legislature recently amended subdivision 1(d) of Minn.St. 543.19 to provide: "* * * (d) Commits any act outside Minnesota causing injury or property damage in Minnesota, subject to the following exceptions when no jurisdiction shall be found:

(1) Minnesota has no substantial interest in providing a forum; or

(2) the burden placed on the defendant by being brought under the state's jurisdiction would violate fairness and substantial justice; or

(3) the cause of action lies in defamation or privacy." L.1978, c. 780, § 2.

[2] Minn.St. 340.14, subd. 1, allows "off-sale" sales of intoxicating liquors in cities of the first class and in all cities located within a radius of 15 miles of cities of the first class between the hours of 8 a. m. and 8 p. m. on weekdays, between 8 a. m. and 10 p. m. on Saturdays, and prohibits sales on Sundays. October 23, 1974, was a weekday and thus Minnesota required "off-sale" stores to close by 8 p. m. Holders of Class B liquor licenses in Hudson, Wisconsin, however, were permitted by City of Hudson Municipal Code § 1301(9)(b) to make "off-sale" sales from 8 a. m. to 2 a. m. the next morning on weekdays and Saturdays and from noon to 2 a. m. on Sundays. Brown's off-sale business was thus allowed to remain open until 2 a. m. on the date of the accident.

[3] Plaintiff also cites Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957), for the proposition that our Act has extraterritorial application. In Schmidt, the alleged illegal sale took place in Minnesota, resulting in injury to a Minnesota plaintiff in Wisconsin. We held that our Act applied to the Wisconsin injury. Since Schmidt did not involve a nonresident seller, it is clearly distinguishable from the case at hand.

[4] We recognize that by disposing of the issue on grounds of statutory interpretation rather than upon common-law choice of law principles we depart from Professor Robert Leflar's suggestion that "[w]hen a statute is silent as to its extrastate applicability, a court may and should as appropriately look to all the relevant choice-of-law considerations as if it were choosing between common-law rules" rather than resorting to statutory interpretation. See, Leflar, American Conflicts Law, 229-32 (1968). Although we have adopted Leflar's five "choice-influencing considerations" as our approach to resolving conflict of law questions, we choose not to follow in the present case his suggestion as to when courts may engage in statutory construction, and thus avoid the necessity of invoking the five-factor analysis.

Jon C. Sogn of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, for plaintiffs and appellants.

John E. Simko and Mark Mickelson, Legal Intern of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee.

ZINTER, Circuit Judge.

Plaintiffs, Charlotte and Glenn Chambers (Charlotte or Chambers), appeal from a jury verdict in favor of Defendant, Dakotah Charter, Inc. (Dakotah Charter). The questions presented on appeal are (1), whether South Dakota courts should continue to follow the choice of laws rule of lex loci delecti (law of the place of the [64] wrong) in multi-state tort actions and (2), whether the trial court should have applied the Missouri law of comparative negligence in an action between South Dakota domiciliaries arising from an accident on a bus in Missouri. The trial court declined to follow lex loci delecti, and it applied the South Dakota law of comparative negligence. We affirm.

In May 1989, Charlotte and thirty-four other South Dakota residents chartered a bus in Sioux Falls from Dakotah Charter, a South Dakota corporation. The purpose of the trip was to attend a Tae Kwon Do tournament in Arkansas. While en route from South Dakota to Arkansas, the bus stopped on three occasions for the convenience of the passengers and refueling. The first and second stops, in Omaha, Nebraska and St. Joseph, Missouri, occurred without incident. On the third stop, in Nevada City, Missouri, Charlotte fell on the steps in the bus and severely fractured her ankle.

Chambers commenced actions for personal injury and loss of consortium. Chambers contended that Dakotah Charter negligently failed to maintain the interior of the bus in a safe condition. Charlotte specifically contended that she fell on a discarded piece of candy that was distributed to children by Dakotah Charter's bus driver during the first leg of the trip. Dakotah Charter denied Chambers' allegations and also contended that Charlotte was contributorily negligent.

Although the contributory negligence of a plaintiff no longer constitutes an absolute bar to recovery in either South Dakota or Missouri, each state's comparative negligence law is slightly different. Missouri is a pure comparative negligence state. Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983). Under Missouri law, if a plaintiff is determined to be contributorily negligent in any degree, the plaintiff may still recover, but the plaintiff's damages are reduced by the percentage of fault that is attributed to the plaintiff's conduct. Id. Under South Dakota law, a contributorily negligent plaintiff's damages are also reduced in proportion to the amount of the plaintiff's contributory negligence. A contributorily negligent plaintiff may not, however, recover anything in South Dakota if the plaintiff's negligence is more than slight in comparison with the negligence of the defendant. SDCL 20-9-2.^[1]

Based upon the three special concurrences in Owen v. Owen, 444 N.W.2d 710 (S.D. 1989), the trial court declined to follow the traditional rule of lex loci delicti and apply the Missouri law of comparative negligence. Instead, the trial court instructed the jury under South Dakota's comparative negligence statute. Chambers argue that, under lex loci delicti or the modern approaches discussed in Owen, the trial court should have given Chambers' proposed instruction which incorporated Missouri law. We disagree.

Our standard of review of the trial court's instructions is well established. An appellant has the burden to show not only that the instruction given was in error, but also that it was prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if the appellant's instructions had been given. Lytle v. Morgan, 270 N.W.2d 359, 362 (S.D.1978).

CHOICE OF LAWS APPROACH

Until 1989 this Court has followed an unqualified rule of lex loci delicti to govern the choice of laws in multi-state tort actions. See Owen, 444 N.W.2d 710; Heidemann v. Rohl, 86 S.D. 250, 194 N.W.2d 164 (1972). Although we did not formally abandon lex loci delecti in Owen, the "majority" opinion, written by Morgan, J. and concurred in by Wuest, C.J., took the first step in that direction when it adopted a [65] public policy exception to the rule "to avoid applications that are repugnant to the public policy of our state." Owen, 444 N.W.2d at 713. Although the three remaining members of this Court concurred in the Owen result, they voted by special concurrence to "[j]oin the vast majority of jurisdictions which [have] abolish[ed] the archaic and rigid rule of lex loci in favor of an approach which gives flexibility and addresses conflicts of laws issues in a responsible and equitable manner." Id. at 714-715 (Miller, J., concurring specially, joined by Henderson and Sabers, JJ.). Although the reasons for abandonment of the rule were well articulated by present Chief Justice Miller in Owen, 444 N.W.2d at 715, our adoption of lex loci delecti in Heidemann and stare decisis warrant a further limited discussion of reasons for abandonment of the traditional rule.

Lex loci delecti is a judge made rule of law that is based on the doctrine of vested rights. In Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 746, 191 N.E.2d 279, 281 (1963), the case that led many courts to abandon lex loci delecti, the New York Court of Appeals explained that:

The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court..., has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort.... It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law.... Although espoused by such great figures as Justice HOLMES ... and Professor Beale ... the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act. `The vice of the vested rights theory', it has been aptly stated, `is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved'.... More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. It is for this very reason that, despite the advantages of certainty, ease of application and predictability which it affords ..., there has in recent years been increasing criticism of the traditional rule by commentators and a judicial trend towards its abandonment or modification. (citations omitted).

Twenty years ago we adopted lex loci delecti in Heidemann, 194 N.W.2d at 169. At that time we noted that lex loci delecti was the prevailing rule. Id. at 167. Although Babcock had been decided at that time, we declined to adopt a modern approach until a satisfactory substitute was developed because we noted "considerable confusion and inconsistency" in the application of modern rules. Id. at 169. We observed, however, that the condition was perhaps characteristic of any transitional period in a changing law era. Id.

The transition to a new approach has continued since Heidemann. Today only fifteen states still retain the traditional rule,^[2] and the majority of states which [66] have chosen a new approach have adopted some version of the significant relationship approach. See generally Smith, Choice of Law in the United States, 38 Hastings L.J. 1041 (1987); Kay, Theory into Practice: Choice of Law in the Courts, 34 Mercer L.Rev. 521 (1983). Furthermore, courts have started to overcome the inconsistency we noted Heidemann, at least in cases such as this one which involves contributory/comparative negligence.^[3] Because a discernible trend toward one modern approach has developed among states which have abandoned the traditional rule and because substantial precedent is developing under the modern approaches, we now join the clear majority and abandon lex loci delecti to govern choice of laws analysis in multi-state tort actions. Heidemann and other cases to the contrary are modified as hereinafter provided.

Having abolished lex loci delecti as South Dakota's choice of law rule, we turn to the adoption of an appropriate modern approach. The selection of the proper modern approach has been the subject of much discussion by scholars and courts. See Owen, 444 N.W.2d at 714 n. 2. Although three members of this Court expressed a preference in Owen for the "choice-influencing considerations" approach refined by Professor Robert A. Leflar,^[4] we left the matter for further analysis. Subsequent analysis by others has provided thoughtful insight into the adoption of an appropriate modern approach. See Thatcher, Choice of Law in Multi-State Tort Actions after Owen v. Owen: The Less Things Change..., 35 S.D.L.Rev. 372 (1989-1990).

No less than six approaches are in current use in one or more combinations.^[5] This diversity has been caused in part by substantial disagreement among scholars about fundamental questions underlying each approach. Unfortunately, there is probably less consensus among the scholars today than ever before. Kramer, Rethinking Choice of Law, 90 Colum.L.Rev. 277, 279 (1990). Nevertheless, of the modern approaches, the three most generally accepted by courts are: (1) the "most significant relationship" approach which arose out of Babcock, 240 N.Y.S.2d 743, 191 N.E.2d 279, and has evolved into the Restatement (Second) of Conflict of Laws (1971); (2) the "governmental interest" approach originated by Professor Brainerd Currie and adopted in Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967); and, (3) the "choice-influencing considerations" approach refined by Professor Leflar.

The favoritism shown by courts for some form of the significant relationship approach appears to have occurred for general and specific reasons. Generally, the mere adoption of the Restatement (Second) has restricted development of the governmental interest and the choice-influencing consideration approaches. Smith, supra, at 1170. That trend has occurred because all but one of the modern considerations used in government interest and choice-influencing approaches are explicitly recognized in the Restatement (Second), and the omitted consideration, (the better law factor), can be considered under § 6 of the Restatement (Second). As a result, the government interest and choice-influencing consideration approaches have been relegated to a secondary role in conflicts jurisprudence. Id.

The government interest and the choice-influencing consideration approaches have also been the subject of specific criticism. The pure governmental interest approach has been criticized because it rejects all jurisdiction-selection rules for all purposes. Posnak, Choice of Law—Rules vs. Analysis: A More Workable Marriage than the (Second) Restatement; A Very Well-Curried [67] Leflar Over Reese Approach, 40 Mercer L.Rev. 869, 875 n. 37 (1989). It has also been criticized because its decidedly proforum preference has been rejected by most courts and commentators, including those committed to the approach. Kay, supra, at 551. Although the interest approach probably remains the dominant choice of law theory among academics, its hold is slipping among new scholars, Kramer, supra, at 278-279, and it has received little support from the courts.^[6]

The choice-influencing-considerations approach has also received comparatively little recognition by courts.^[7] This has occurred in part because, except for its "better law" factor, there is not much difference between this approach and the Restatement (Second). Posnak, supra, at 887 n. 96. Furthermore, the better law factor has been the subject of much criticism. E. Scoles & P. Hay, Conflict Of Laws § 2.11 (1984); Korn, The Choice-of-Law Revolution: A Critique, 83 Colum.L.Rev. 722, 958 (1983).

The Restatement (Second) is a compromise. It contains rules, which aid in certainty of application, as well as the generally recognized policy considerations which are to be considered with the rules. Although a principal criticism of the Restatement (Second) has been that it has not always led to consistent results, its authors believed that it was unwise to do more than adopt broad flexible rules, in the most significant relationship formulation, that would guide courts without impeding constructive progress. Reese, Conflict of Laws and the Restatement Second, 28 Law & Contemp. Probs. 679, 699, (1963); Kay, supra, at 553. Although this compromise has led to an approach which some have said is so general as to be useless, even those critics admit benefit will arise from the adoption of any rule that is also applied by other states. Kramer, supra, at 321-322.

Most states, which have abandoned lex loci delecti, now apply some form of the significant relationship approach.^[8] Because the Restatement (Second) contains most of the generally accepted modern policy considerations and rules, because it has become the prevailing approach among courts and because the most precedent will develop under that approach, we now adopt the most significant relationship approach to govern multi-state tort conflicts.

DETERMINATION OF THE APPROPRIATE COMPARATIVE NEGLIGENCE LAW

Under the most significant relationship approach:

[68] (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.

Restatement (Second) of Conflict of Laws § 145 (1971). The principles to be considered under § 6 are:

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(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.

Restatement (Second), supra, § 6 (1971).

Here, the issue involves the application of rules of contributory and comparative negligence. Those rules do not regulate or determine what is negligent conduct. They only regulate the amount of damages a contributorily negligent plaintiff may recover.

With respect to that issue, South Dakota has all of the important contacts. First, the principal conduct which allegedly caused the injury was the distribution of the candy in the bus on the first leg of the trip. Missouri had no contact with that conduct. Even if Missouri could claim some limited contact with Dakota Charter's alleged failure to maintain a safe premises after the candy was distributed, Missouri's contact was relatively unimportant to the issue of comparative negligence because comparative negligence law is not a rule of the road nor does it regulate the conduct of bus companies using Missouri's highways. Second, South Dakota was the domicile, residence, place of incorporation and place of business of the parties, as well as the place where the relationship of the parties was centered. These contacts are important to the issue of comparative negligence because the economic impact of the law applied will be felt where the parties reside. Finally, although the injury did occur in Missouri, it occurred in the bus while on an interstate journey from South Dakota to Arkansas. It was merely fortuitous that Charlotte slipped while the bus was passing through Missouri.

Considering these contacts, the two factors relevant to a choice of the appropriate comparative negligence law favor the application of South Dakota law. These two factors are the policies of the interested states and the relative interests of the states in determining the issue.

This state's policy has been clearly expressed by the legislature in our comparative negligence statute. Although Missouri also has a comparative negligence policy, South Dakota has the only significant interest in a determination of the comparative negligence issue because all of the contacts are in South Dakota, and Missouri's policy would not be furthered by its application to South Dakota domiciliaries who have no [69] important contact with Missouri.^[9] Where the forum's interests are the "most deeply affected" under these factors, it is generally fitting that forum's law should be applied. Restatement, supra, § 6 comment (f) (1971).

The remaining factors have little importance in this negligence action. First, neither Missouri nor South Dakota's laws significantly affect the needs of interstate systems because neither interstate relations nor automobile movement would be influenced by either law. Second, the protection of justified expectancy, although important in consensual relationships, has no importance in this negligence action. Generally, people do not consider the legal consequences of their conduct or how law may be applied prior to becoming involved in an accident. Third, the policy of ameliorating the harsh consequences of common law contributory negligence rules is furthered by both states' comparative negligence laws. Although Chambers argue that Missouri's policy is better, that contention is debatable. Furthermore, even if Missouri's policy could be considered "better," conflicts analysis should not be used to apply the law of a state that has no interest in having its rule applied. The proper solution in such cases is to change the forum's inferior law. Fuerste v. Bemis, 156 N.W.2d 831, 834 (Iowa 1968). Finally, little significance can be attached to the ease of determining and applying comparative negligence law or to the certainty, predictability and uniformity of result. Both states' laws are easy to determine and apply. Furthermore, because the differences in the law are so minor, there will be few differences in result.

Considering the issue and each state's contacts, South Dakota has the most significant relationship to the occurrence and the parties. This Court holds that the forum's comparative negligence law should be applied to a forum's domiciliaries who are involved in an accident in another state. Other courts have reached the same conclusion under each of the modern approaches.^[10] We affirm the trial court's application of South Dakota law and need not reach the issue raised by Dakotah Charter's notice of review.

ZINTER, Circuit Judge, for AMUNDSON, J., disqualified.

[70] WUEST, HENDERSON and SABERS, JJ., concur.

MILLER, C.J., concurs specially.

MILLER, Chief Justice (concurring specially).

I am in full accord with and concur in the majority opinion.

At the time of my special writing in Owen, I was persuaded that the "choice-influencing considerations" approach was preferable. Since that time, with the opportunity to give it further study and consideration, I am now convinced that "the most significant relationship" approach is the most appropriate for South Dakota. I would be less than candid if I did not note that Professor Thatcher's fine law review article (35 S.D.L.Rev. 372) played a large part in stimulating my re-evaluation on this topic.

Konrad Adenauer was once quoted as saying, "I reserve the right to be smarter today than I was yesterday." So do I!

[1]SDCL 20-9-2 provides:

In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff's contributory negligence.

[2] See Powell v. Sappington, 495 So.2d 569 (Ala. 1986); Friday v. Smoot, 58 Del. 488, 211 A.2d 594 (1965); Sargent Indus., Inc. v. Delta Air Lines, 251 Ga. 91, 303 S.E.2d 108 (1983); Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985); Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983); Haker v. Southwestern Railway Co., 176 Mont. 364, 578 P.2d 724 (1978); Tab Construction Co. v. Eighth Judicial District Court, 83 Nev. 364, 432 P.2d 90 (1967); Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362 (1961); Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288 (1963); Algie v. Algie, 261 S.C. 103, 198 S.E.2d 529 (1973); Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972); Goldman v. Beaudry, 122 Vt. 299, 170 A.2d 636 (1961); Frye v. Comm.W., 231 Va. 370, 345 S.E.2d 267 (1986); Vest v. St. Albans Psychiatric Hospital, Inc., 182 W.Va. 228, 387 S.E.2d 282 (1989); Duke v. Housen, 589 P.2d 334 (Wyo.), cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979).

[3] See note 10, infra.

[4] See, Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966); Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif.L.Rev. 1584 (1966); R. Leflar, L. McDougal & R. Felix, American Conflicts Law 207 (4th ed. 1986).

[5] For a survey of the choice of law theories currently in use in all jurisdictions see Smith, Choice of Law in the United States, 38 Hastings L.J. 1041 (1987); Kozyris & Symeonides, Choice of Law in the American Courts in 1989: An Overview, 38 Am.J.Comp.L. 601 (1990).

[6] The only courts which have adopted this approach are: Nepera Chem., Inc. v. Sea-Land Service, Inc., 794 F.2d 688 (D.C.Cir.1986); Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977); Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967); Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.1973); Mellk v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967); Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970).

[7] The only courts which have adopted this approach are: Peters v. Peters, 63 Haw. 653, 634 P.2d 586 (1981); Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Pardey v. Boulevard Billiard Club, 518 A.2d 1349 (R.I.1986); Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664 (1967).

[8] See Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968); Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968); First Nat'l Bank v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986); Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980); Johnson v. Pischke, 108 Idaho 397, 700 P.2d 19 (1985); Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); Hubbard Mfg. Co., Inc. v. Greeson, 515 N.E.2d 1071 (Ind.1987); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968); Adams v. Buffalo Forge Co., 443 A.2d 932 (Me.1982); Cohen v. McDonnell Douglas Corp, 389 Mass. 327, 450 N.E.2d 581 (1983); Mitchell v. Craft, 211 So.2d 509 (Miss.1968); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969); Harper v. Silva, 224 Neb. 645, 399 N.W.2d 826 (1987); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972); Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 15 OBR 463, 474 N.E.2d 286 (1984); Brickner v. Gooden, 525 P.2d 632 (Okla.1974); Erwin v. Thomas, 264 Or. 454, 506 P.2d 494 (1973); Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979); Forsman v. Forsman, 779 P.2d 218 (Utah 1989); Southwell v. Widing Transp., Inc., 101 Wash.2d 200, 676 P.2d 477 (1984).

[9] It is acknowledged that considering these factors, many scholars and some courts have categorized this type of case as a "false conflict" which presents no conflict of law and which should be decided under the law of the state which has the specific interest without regard to any presumptive conflict rule or approach. See, e.g., B. Currie, Selected Essays on the Conflict of Laws 107 (1963); Posnak, supra at 873. Nevertheless, we apply the significant relationship approach to clarify the current ambiguity in this jurisdiction concerning the proper choice of law approach to apply in multi-state tort cases.

[10] See Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977) (Governmental interest approach—Arkansas' comparative negligence law which apportions liability as long as plaintiff's fault is less than defendant's applies to an Arkansas resident's injury sustained in an auto accident in Missouri while Missouri's rules of the road apply to questions of negligence in driving the vehicle); Sabell v. Pacific Intermountain Express Co., 36 Colo.App. 60, 536 P.2d 1160 (1975) (Most significant relationships approach—Colorado's comparative negligence law applies to a motor vehicle accident that occurred in Iowa as the issue relates to the recovery of damages); Brown v. DSI Transports, Inc., 496 So.2d 478 (La.Ct.App.1986) (Most significant relationship approach—Louisiana law of comparative negligence applies to a Louisiana plaintiff injured in auto accident in Alabama); Mitchell v. Craft, 211 So.2d 509 (Miss.1968) (Choice-influencing-considerations approach—Mississippi comparative negligence law applies to Mississippi residents injured in auto accident in Louisiana); Fells v. Bowman, 274 So.2d 109 (Miss. 1973) (Most significant relationship or choice-influencing consideration approach—Mississippi comparative negligence law applies to damages recoverable by a Mississippi resident's auto accident in Louisiana while rules of the road of the tort state apply to determine negligence); DeRemer v. Pacific Intermountain Express Co., 353 N.W.2d 694 (Minn.Ct.App.1984) (Choice-influencing considerations approach—Minnesota comparative negligence law applies to Minnesota resident injured in auto accident in South Dakota); Schwartz v. Consolidated Freightways Corp. of Dela., 300 Minn. 487, 221 N.W.2d 665 (1974) (Choice-influencing considerations—Minnesota comparative negligence law applies to Minnesota resident injured in Indiana by defendant licensed to do business in Minnesota); Isssendorf v. Olson, 194 N.W.2d 750 (N.D. 1972) (Dominant contacts approach—North Dakota law of contributory negligence applies to North Dakota resident injured in auto accident in Minnesota).

[588] Bert Sakuda, Honolulu (L. Richard Fried, Jr. and Craig K. Furusho, Honolulu, with him on the briefs; Cronin, Fried, Sekiya, Haley & Kekina, Honolulu, of counsel), for plaintiff-appellant.

Roy Hughes, Honolulu (James F. Ventura and Roy T. Chikamoto, Honolulu, with him on the brief; Libkuman, Ventura, Moon & Ayabe, Honolulu, of counsel), for defendant-appellee.

Before RICHARDSON, C.J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

NAKAMURA, Justice.

We are asked to review a choice-of-law decision of the Circuit Court of the First Circuit in a negligence action arising from an automobile accident that occurred on the island of Maui while Plaintiff-appellant Lilien G. Peters and her husband, Defendant-appellee Hans A. Peters, both residents of New York, were vacationing in Hawaii. As we do not deem a judicial abrogation of our interspousal tort immunity rule appropriate, and the record discloses adequate grounds for an application of Hawaii's immunity rule rather than the law of the parties' domicile permitting interspousal tort suits, we affirm the award of summary judgment to defendant-appellee.

I.

But a few facts are essential to our discussion. On April 21, 1975, a "U-Drive" vehicle being driven by Mr. Peters and in which Mrs. Peters was a passenger collided with a truck owned by the Hawaiian Commercial & Sugar Company. Mrs. Peters who was injured in the accident chose to assert her claim for damages in the Circuit Court of the First Circuit. The sole defendant named in the complaint was Mr. Peters, and it ascribed the collision to his negligence. Upon motion of counsel for defendant-appellee, summary judgment was granted Mr. Peters on the strength of the foregoing immunity. A timely appeal to this court followed.

II.

The authority of our courts has been invoked by plaintiff-appellant to determine whether her spouse should be accountable for an alleged tort of local inception. We are nevertheless confronted by a conflict-of-laws problem due to the presence of a relevant foreign element, the abode of the parties. Whether our law or that of the domiciliary state should govern the validity of the action under the circumstances involved is a question of first impression in the annals of this court.^[1]

Plaintiff-appellant contends the viability of the suit against her husband should be determined in accord with the pertinent law of their domicile. She further views interspousal tort immunity as an anachronism that should be expunged from the jurisprudence of Hawaii. We initially address the second proposition.

A.

The common law rule of interspousal tort immunity was bottomed on the legal unity of husband and wife, for the two were considered as "one person in law."^[2] [589] Among the disabilities thereby thrust upon a woman by marriage was the loss of capacity to contract for herself, or to sue or be sued without joining her husband as a plaintiff or defendant. 1 W. Blackstone, Commentaries *442, *443. The foregoing and other incidents of the marriage status under the common law rendered the maintenance of tort actions between husband and wife impossible. W. Prosser, The Law of Torts § 122, at 859-60 (4th ed. 1971).

Changes in the American social order wrote an end to the notion of "a union of person in husband and wife." W. Blackstone, supra, at *442. And commencing about 1844, "statutes known as Married Women's Acts, or Emancipation Acts were passed in all American jurisdictions, which were designed primarily to secure to a married woman a separate legal identity and a separate legal estate in her own property." W. Prosser, supra, at 861.

In Hawaii, the ancient but unvenerated concept of the female marriage partner's legal subjugation was adopted tardily in 1846 as part of Act 2, 1 Statute Laws of His Majesty Kamehameha III.^[3] More than a decade later, while many American jurisdictions were in the process of discarding the hoary concept, the Legislative Council reiterated its adherence thereto when it adopted the Civil Code of the Hawaiian Islands of 1859.^[4] And it was not until 1888 that a Married Woman's Act was enacted in the Kingdom. Chapter XI, Session Laws of 1888, established, inter alia, the right of a married woman to hold real and personal property in her own right, to make contracts as if she were sole, and to sue and be sued in the same manner as if she were sole.^[5] As a consequence, Hawaii like all other states no longer regards husband and wife as an indivisible legal unit for most purposes.^[6] First National Bank of Hawaii [590] v. Gaines, 16 Haw. 731, 733 (1905). But § 5 of Chapter XI, which granted married women the right to sue in their own names, also carried a proviso reading:

[B]ut this section shall not be construed to authorize suits between husband and wife.

The language of § 5 with the foregoing limitation remains intact and is presently codified as HRS § 573-5. Since interspousal tort immunity in Hawaii and its conceptual parent, the legal unity of husband and wife, have a definite statutory provenance,^[7] the rule is not for judicial discard without compelling reasons.

Deeming the constraint on interspousal actions "a matter of common law," however, plaintiff-appellant urges us to emulate the Supreme Judicial Court of Massachusetts in construing the pertinent statutory provision. In Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526 (1976), the court found that interspousal tort immunity had not acquired statutory dimension with the passage of a statute substantially similar to § 573-5 in text.^[8] It concluded the rule nonetheless remained "in its common law status susceptible to reexamination and alteration by... [the] court," 370 Mass. at 627-28, 351 N.E.2d at 531, and fashioned a new rule of interspousal tort liability limited "to claims arising out of motor vehicle accidents." 370 Mass. at 630, 351 N.E.2d at 532. But the rule and its history in Hawaii do not permit us to lightly infer it is amenable to judicial modification which would remove the instant situation from its purview.^[9]

The Married Woman's Act, presently complied as HRS Chapter 573, has been subject to extensive amendment since its adoption. Most recently, HRS §§ 573-6 and 573-7, covering the debts and liabilities of the husband, were scrutinized and amended to ensure conformity with Article I, § 3 of the Hawaii State Constitution, our Equal Rights Amendment, that prohibits the denial or abridgment of legal rights on the basis of sex.^[10] The legislature has not been inactive where marital relations and responsibilities are concerned; it has displayed no disinclination to act when a need for statutory revision is perceived. Under the circumstances, deference to the legislative branch of government is the proper judicial stance. Where aspects of a legislatively adopted public policy statement have been examined and changed by the legislature, it would be presumptuous to believe an unamended aspect has been left for judicial alteration.

We also are unable to conclude the policy on interspousal suits is now bereft of [591] rationality, despite the unanimous or near-unanimous belief of legal writers that the "metaphysical and practical reasons which prevented such actions ... are no longer applicable." 1 F. Harper & F. James, The Law of Torts § 8.10, at 646 (1956). See also W. Prosser, supra, at 864. For in the considered judgment of the courts or legislatures of nearly half of the states, the rule may still serve a salutary purpose. See Guffy v. Guffy, 230 Kan. 89, 92, 631 P.2d 646, 648 (1981); Annot., 92 A.L.R.3d 901 (1979).

B.

Turning to the primary question regarding the viability of Mrs. Peters' suit, we observe at the outset that the issue is a substantive rather than a procedural matter, and we would not be obliged to apply the law of Hawaii if our conflict-of-laws analysis indicates that resort to the New York law^[11] would best serve the interests of the states and persons involved. R. Weintraub, Commentary on the Conflict of Laws § 3.2C, at 55 (2d ed. 1980). Furthermore, as the record reveals sufficient contacts with the action, as well as interests therein, on the part of both states, a choice of the law of either would not run afoul of the Due Process and the Full Faith and Credit Clauses of the United States Constitution. See Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981).

A recapitulation of the actual nature of the action will help to place the problem in clearer perspective. In a moment of candor before the circuit court, plaintiff-appellant characterized the suit as one for "insurance proceeds available for personal injuries." The following excerpt from a memorandum filed in the circuit court by plaintiff-appellant tells us more about its nature:

[T]he only reason plaintiff brings this suit against her husband is to avail herself of the insurance proceeds to cover her injuries. As a practical matter, the insurance company is the party who stands to lose if Mrs. Peters sues her husband and prevails. Family solidarity is not threatened by this lawsuit. There is no malice or spite in the lawsuit and the recovery will be limited to the extent of insurance proceeds available for personal injuries.

Since the collision involved a "U-Drive" vehicle, we can assume the insurance proceeds sought, at least in part, are those that might be payable under the liability portion of the insurance policy purchased by the lessor of the vehicle,^[12] and the recovery of damages thereunder is still contingent upon a showing of defendant-appellee's fault.

1.

The precepts underlying the choice of law in the area of torts have undergone swift and dramatic changes. Until fairly recently, the widely accepted method of selection was a simple search for the law of the place of impact (lex loci delicti). R. Weintraub, supra, § 6.1, at 266-67. But as the inadequacy of "a single, rigid, territorially-oriented choice-of-law rule" for the vast range of tort problems was acknowledged, more complex approaches were developed. Id. [592] The development of alternatives to the "mechanical method" of lex loci delicti was fostered for the most part by legal scholars who advocated the adoption of more flexible analytical frameworks. R. Leflar, American Conflicts Law § 131, at 263-64 (3d ed. 1977). But a verdict on a generally acceptable "approach" to replace the unsatisfactory "rule" is yet to be returned by the scholarly jury.^[13] The courts, likewise, have not agreed on what rule, set of rules, or approach works best, as they continue to rely on a variety of theories "more or less interchangeably, and in effect apply a sort of combination of them." R. Leflar, supra, § 131, at 264.

Professor David Cavers, an early critic of the traditional choice-of-law rules, found them unsatisfactory because "[t]he court must blind itself to the content of the law to which its rule or principle of selection points and to the result which that law may work in the case before it." Cavers, A Critique of the Choice-of-Law Problem, 47 Harv.L.Rev. 173, 180 (1933). He advocated instead, "a system leading to `principles of preference' based upon choice between laws rather than choice between jurisdictions." R. Leflar, supra, § 131, at 263.^[14]

Also among the first to offer an alternative to lex loci delicti was Professor Brainerd Currie, and his analysis entailed a consideration of the "governmental interests" of the states whose laws might be applicable, but with a basic preference of the forum's own law.^[15] At about the same time, the Restatement of Conflict of Laws was being revised under the auspices of the American Law Institute. Its draft document proposed what was officially called "the most significant relationship" test, otherwise referred to as the "center of gravity" or "dominant contacts" approach. R. Leflar, supra, § 131, at 263. Simply stated, the framework for analysis propounded by Restatement (Second) determines rights and liabilities in tort cases on the basis of "the local law of the state which ... has the most significant relationship to the occurrence and the parties.^[16]

More recently, Professor Robert Leflar articulated a decision-reaching method governed by "fundamental policy factors identified [593] as choice-influencing considerations which are deemed to underlie all choice-of-law decision." R. Leflar, supra, § 131, at 264 (footnote omitted). And the factors he regards as fundamental are: (1) predictability of result, (2) maintenance of interstate order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. R. Leflar, supra, §§ 103-07.

The foregoing by no means constitutes a survey of legal thought in the area of our present concern. But the concepts embodied in the writings of Professors Cavers, Currie, and Leflar and in Restatement (Second) have had significant influence, and "[a]n assessment of the various interests of the states whose laws are in conflict has become the dominant mode of analysis in modern choice of law theory." Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U.L.Rev. 33, 80 n. 259 (1978).

2.

Stressing lex loci delicti's apparent demise, plaintiff-appellant argues for an adoption of the "dominant contacts" analysis of Restatement (Second). And an examination of the relevant contacts, she maintains, leads to an inescapable conclusion that lex domicilii is applicable here, for New York obviously has a greater interest in the marriage and welfare of the parties.

Defendant-appellee counters with statements that lex loci delicti is alive and well, we should not embark on a voyage in the "uncharted sea" of new approaches, and the traditional rule provides a desirable certainty and predictability of result. If we find the old rule unacceptable, he suggests we follow Arnett v. Thompson, 433 S.W.2d 109 (Ky. 1968), where adherence to the old rule was disclaimed but lex fori was nevertheless applied on the basis of the forum state's "sufficient contacts" with the action.^[17]

Like plaintiff-appellant, we see no basis for the acceptance of lex loci delicti as a controlling rule at this point in the growth of American Conflicts law. Nor do we choose to adopt Kentucky's analysis in Arnett v. Thompson, supra, as a "formula," for that would wed us to an "approach" nearly as rigid as the unacceptable "rule." The preferred analysis, in our opinion, would be an assessment of the interests and policy factors involved with a purpose of arriving at a desirable result in each situation.

3.

Our legislature has indicated that interspousal tort actions should not be countenanced. We assume the rationale for maintaining this policy includes the preservation of marital harmony and the prevention of collusive suits. Legislative wisdom in New York, on the other hand, has concluded that the allowance of interspousal tort actions furthers the interests of the State and the welfare of its domiciliaries. The policy favors the recovery of tort damages by one spouse from the other at the risk of possible marital discord and collusive suits. As Mr. and Mrs. Peters are domiciled in New York, Hawaii's interest in promoting marital harmony pales in the light of New York's predominant interest in their marriage and welfare. Yet, there are other interests and factors to be considered.

Mrs. Peters could have addressed her plea for damages to the courts of her domicile, and it is likely they would have honored an attempt to prove her husband's fault and the resultant injury.^[18] She nonetheless [594] chose to assert her claim in Hawaii, presumably with knowledge that the courts were subject to restraint where interspousal actions are concerned. But "[t]he forum, qua forum, has an interest in preserving the integrity and economy of its judicial process." R. Weintraub, supra, § 6.12, at 290.^[19] And neither Hawaii's interest in discouraging possibly collusive actions nor the State's reluctance to have its tribunals entertain claims its residents are precluded from filing can be discounted in this instance.

Mrs. Peters also avers her suit was brought "to avail herself of insurance proceeds" and the "insurance company is the party who stands to lose if [she] ... prevails." That courts elsewhere have justified the abrogation of tort immunity on the prevalence of liability insurance in contemporary society has not escaped us. See, e.g., Immer v. Risko, 56 N.J. 482, 489, 267 A.2d 481, 485 (1970); Digby v. Digby, R.I., 388 A.2d 1, 3 (1978); see also Sorenson v. Sorenson, 369 Mass. 350, 362, 339 N.E.2d 907, 914 (1975). We are mindful that in a typical intrafamilial tort suit the insurer is "the true defendant," the "interests of the parties unite in favor of recovery and family harmony is assured instead of disrupted" thereby. Tamashiro v. De Gama, supra, 51 Haw. at 78, 450 P.2d at 1001. But in this case, the presence of insurance raises other considerations we cannot ignore.

We earlier noted the proceeds of the liability portion of an insurance policy purchased by the lessor of a "U-Drive" vehicle to comply with Hawaii's Motor Vehicle Accident Reparations Law most probably were at stake here. Among the reasons advanced for an application of lex domicilii in interspousal tort actions with insurance implications is that this "tends to fulfill the general expectations which either spouse's insurer may have held regarding capacity to sue and adjustment of premiums." Comment, Lewis v. Lewis: Dissolving the "Metaphysical" Merger in Interspousal Torts, 12 New Eng.L.Rev. 333, 350 (1976). See Ford, Interspousal Liability for Automobile Accidents in the Conflict of Laws: Law and Reason Versus the Restatement, 15 U.Pitt. L.Rev. 397 (1954). See also Johnson v. Johnson, 107 N.H. 30, 32-33, 216 A.2d 781, 783 (1966) (sustaining dismissal of an interspousal action through an application of lex domicilii in part because the insurance policy "was doubtless written with the laws of ... [the domicile] primarily in view").^[20] Geography renders it impossible for "U-Drive" vehicles leased in Hawaii to be driven beyond the confines of our island state. And the insurance policies covering them undoubtedly are written with the laws of Hawaii in mind. To have New York law govern a tort action arising from the operation of such a vehicle would, of course, contravene the expectations of both insurer and lessor.

Where a state attracts the number of visitors that Hawaii does, it can be expected that many of them will lease "U-Drive" cars, some of them will be involved in accidents, and more than a few married persons will be injured as a result of their spouses' negligent operation of the vehicles. Our visitors are domiciled throughout the United States and in many foreign countries, and a reliance on the law of the domicile to determine the viability of interspousal actions would neither provide predictability of result nor simplify the judicial task. More importantly, any resulting significant increase in the number of tort actions entertained by our courts will adversely affect insurance premiums indirectly payable by [595] residents of Hawaii who lease "U-Drive" cars, though Hawaii couples remain bound by interspousal immunity and will not benefit from the judicial expansion of compulsory insurance coverage which would be responsible for the premium increase.^[21]

Our Motor Vehicle Accident Reparations Law, basically a compulsory, no-fault insurance law, was enacted in 1973 to address problems related to motor vehicle liability insurance, including cost.^[22] We cannot disregard the legislative effort to stabilize and reduce motor vehicle liability insurance premium rates. See note 22 supra. And a judicial decision that has a result of expanding insurance coverage for non-residents, partly at the expense of residents, would be at odds with that policy.

We recognize our decision is not in harmony with the declaration in Restatement (Second) that the applicable law in "intra-family immunity" situations "will usually be the local law of the state of the parties' domicil."^[23] But considerations of public policy and the demonstrated interests of the State of Hawaii impel the approval of the circuit court's choice of lex fori over lex domicilii.

The award of summary judgment to defendant-appellee is affirmed.

[1] A survey of this court's decisions reveals we are without authoritative choice-of-law decisions in the area of torts. While there were choice-of-law implications in Kelley v. Kokua Sales & Supply, Inc., 56 Haw. 204, 532 P.2d 673 (1975), we did not find it necessary to engage in a detailed conflict-of-law analysis as the decision turned on the issue of foreseeability. See also Student Survey of Hawaii Conflict of Laws Cases and Statutes (University of Hawaii School of Law, Fall 1978) (unpublished, in University of Hawaii Law Library). Cf. Dashiell v. Keauhou-Kona Co., 487 F.2d 957, 960 (9th Cir.1973), and Gates v. P.F. Collier, Inc., 378 F.2d 888, 892 (9th Cir.1967), where the United States Court of Appeals for the Ninth Circuit found there were no Hawaii decisions governing the choice of law in tort cases and undertook to apply the conflict-of-laws rules generally applied by the courts in the country.

[2]This merger of identities has been described in these terms:

By marriage, the husband and wife are one person in law: (1) that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; it is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.

(Emphasis in the original). 1 W. Blackstone, Commentaries *442.

[3]Ch. IV, art. I, § IV of said Act read in part:

The wife, whether married in pursuance of this article or heretofore, or whether validly married in this kingdom or in some other country, and residing in this, shall be deemed for all civil purposes, to be merged in her husband, and civilly dead. She shall not, without his consent, unless otherwise stipulated by anterior contract, have legal power to make contracts, or to alienate and dispose of property — she shall not be civilly responsible in any court of justice, without joining her husband in the suit, and she shall in no case be liable to imprisonment in a civil action. The husband shall be personally responsible in damages, for all the tortuous [sic] acts of his wife; for assaults, for slanders, for libels and for consequential injuries done by her to any person or persons in this kingdom.

[4] See §§ 1286 and 1287, Civil Code of the Hawaiian Islands, 1859.

[5]Ch. XI, Laws of His Majesty Kalakaua I, passed by the Legislative Assembly of 1888 read in part as follows:

SECTION 1. The real and personal property of a woman shall, upon her marriage, remain her separate property, free from the management, control, debts and obligations of her husband; and a married woman may receive, receipt for, hold, manage and dispose of property, real and personal, in the same manner as if she were sole: Provided, however, that no sale or mortgage of her real estate shall be valid without the written consent of her husband.

SECTION 2. A married woman may make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole, except that she shall not be authorized hereby to make contracts for personal service without the written consent of her husband, nor to contract with her husband.

... .

SECTION 5. A married woman may sue and be sued in the same manner as if she were sole; but this section shall not be construed to authorize suits between husband and wife.

[6] Hawaii still recognizes tenancies by the entirety in real property, which are predicated upon the legal unity of husband and wife. Sawada v. Endo, 57 Haw. 608, 612-13, 561 P.2d 1291, 1295 (1977); see HRS Chapter 509.

[7] But in Tugaeff v. Tugaeff, 42 Haw. 455 (1958), we acknowledged that the rule and its underlying notions were borrowed from the common law when we said the statute "preserves the common law prohibition based upon the concept of legal identity of husband and wife." Id. at 458.

[8]The Massachusetts statute, G.L., ch. 209, § 6, as amended by St. 1963, c. 765, § 2, read as follows:

A married woman may sue and be sued in the same manner as if she were sole; but this section shall not authorize suits between husband and wife except in connection with contracts entered into pursuant to the authority contained in section two.

[9]We do not foreclose the possibility of a modification of the rule in other contexts where there may be overriding policy or constitutional concerns, for the considerations supporting immunity are not the same in every adversary situation that may develop between husband and wife.

In Tamashiro v. De Gama, 51 Haw. 74, 450 P.2d 998 (1969), and Petersen v. City & County, 51 Haw. 484, 462 P.2d 1007 (1969), it was urged upon us that policy considerations similar to those supporting interspousal tort immunity also compelled an approval of parent-child immunity. We did not find the argument persuasive and did not adopt the doctrine. And in Tamashiro we said "[t]his holding, we caution, is limited to this adversary relationship because other intrafamily adversary situations may involve problems or considerations different from the one at hand." 51 Haw. at 79, 450 P.2d at 1002.

[10] S.L.H. 1978, c. 77. See also Hse.Stand. Comm.Rep.No. 309-78, in 1978 House Journal, at 1526, and Sen.Stand.Comm.Rep.No. 720-78, in 1978 Senate Journal, at 1088.

[11]The New York law reads in relevant part:

A married woman has a right of action against her husband for his wrongful or tortious acts resulting to her in any personal injury as defined in section thirty-seven-a of the general construction law, or resulting in injury to her property, as if they were unmarried, and she is liable to her husband for her wrongful or tortious acts resulting in any such personal injury to her husband or to his property, as if they were unmarried.

N.Y.Gen.Oblig.Law § 3-313(2) (McKinney 1978).

[12] Under the Hawaii Motor Vehicle Accident Reparations Law, HRS Chapter 294, no person may register a motor vehicle in the State unless it is insured under an insurance policy providing certain benefits designated as no-fault benefits in an amount not exceeding $15,000 and liability insurance coverage of not less than $25,000 for possible personal injury and $10,000 for possible property damage that may be sustained in the operation of the vehicle. SeeHRS §§ 294-3 and 294-10.

It can be assumed that plaintiff-appellant received her no-fault benefits in reimbursement of at least part of her medical and hospital expenses and wage loss and the instant suit is an attempt to obtain the proceeds of the liability portion of the no-fault policy.

[13] See Reese, Choice of Law: Rules or Approach, 57 Cornell L.Rev. 315 (1972), for a workable distinction between a "rule" and an "approach." In Professor Reese's view, a "rule" is "a phenomenon found in most areas of the law, namely a formula which once applied will lead the court to a conclusion," and an "approach" is "a system which does no more than state what factor or factors should be considered in arriving at a conclusion." Current legal thought appears to favor "approaches" over "rules."

[14]His complex approach has been described by another writer in these terms:

It was generally thought that he favored "justice in the individual case" and an almost "free law" approach, and that his method was result-selective, i.e. favored the application of the "better" of the two or more competing rules of substantive law.

Baade, Counter-Revolution or Alliance for Progress? Reflections on Reading Cavers, The Choice-of-Law Process, 46 Tex.L.Rev. 141, 143 (1967).

[15]Leflar describes the Currie approach as follows:

If the forum state has a socio-legal concern with or interest in the outcome of the case, its law should be applied; if the forum has no such interest it should apply the law of the state that does have an interest; if two other states both have an interest it should apply the law of the one that is most similar to the forum's law.

R. Leflar, supra, § 135, at 275 (footnote omitted).

[16] Restatement (Second) of Conflict of Laws§ 145 (1971) reads:

(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.

[17] In Arnett v. Thompson, supra, the Supreme Court of Kentucky rejected lex loci delicti as the controlling rule and substituted a "sufficient contacts" analysis which resulted in an application of its own rule of tort immunity to an interspousal action involving an Ohio couple and an accident occurring in Kentucky.

[18] While a reading of earlier decisions like Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597 (1936), and Coster v. Coster, 289 N.Y. 438, 46 N.E.2d 509 (1943), would cast some doubt on whether Mrs. Peters' suit would be entertained by the courts of New York, subsequent decisions like Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), and Keller v. Greyhound Corp., 41 Misc.2d 255, 244 N.Y.S.2d 882 (1963), indicate the earlier cases probably do not reflect good law now.

[19] See also R. Weintraub, supra, § 6.12, at 291, and Baker v. Gaffney, 141 F. Supp. 602 (D.D.C. 1956), where the federal district court sitting in Washington, D.C. ruled, on the basis of the common law followed by the courts of the District of Columbia, that an interspousal suit stemming from an accident that occurred in New York could not be maintained, noting the lack of "necessary procedural machinery" for its adjudication.

[20]The court's statement in this regard was:

If the defendant garaged his car in Massachusetts, probably he had obtained insurance there, and this insurance was doubtless written with the laws of Massachusetts primarily in view. The application of New Hampshire law would expose his insurer to a greater risk than it might reasonably have expected to run, given the Massachusetts local law and the trend toward the choice of the domicile's interspousal law in interstate cases.

107 N.H. at 32-33, 216 A.2d at 783.

[21] Hawaii's geographical configuration compels its residents to lease "U-Drive" vehicles frequently, even while they remain in Hawaii.

[22]Hse.Stand.Comm.Rep.No. 187, in 1973 House Journal, at 836, states the purpose of H.B.No. 637, subsequently approved as S.L.H. 1973, c. 203, as follows:

The purpose of this bill is to amend the existing motor vehicle insurance laws as they relate to tort liability arising out of the maintenance or use of a motor vehicle with two primary objectives in mind: (1) insurance reform in order to (a) expedite the settling of all claims, (b) create a system of reparations for injuries and loss arising from motor vehicle accidents, (c) compensate these damages without regard to fault, and (d) modify tort liability for these accidents; and (2) to establish a system of reasonable cost of motor vehicle insurance with a view to reducing such cost.

Sen.Conf.Comm.Rep.No. 4, in 1973 Senate Journal, at 635, states the purpose of H.B. No. 637 in these terms:

The purpose of this bill, as amended herein, is to amend existing motor vehicle insurance laws as they relate to tort liability arising out of the ownership and use of motor vehicles.

Your Committee is of the belief that a basic, comprehensive, equitable, and reasonably priced auto insurance policy must satisfy each of the following criteria:

(1) Provide for a speedy, adequate and equitable reparation for those injured or otherwise victimized;

(2) Provide for the stabilization and reduction of motor vehicle liability insurance premium rates;

(3) Provide for insurance coverage for all who require it, at a cost within the reach of every licensed driver;

(4) Provide for a compulsory insurance system;

(5) Provide for adequate regulatory control.

[23] Restatement (Second) of the Conflict of Laws(1971) provides in pertinent part:

§ 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.

[587] Bjella, Neff, Rathert, Wahl & Eiken, Williston, for plaintiff and appellee; argued by William M. McKechnie, Williston.

Zuger & Bucklin, Bismarck, for defendants and appellants; argued by Patrick J. Ward, Bismarck, Lyle W. Kirmis, Bismarck, on brief.

PEDERSON, Justice.

This wrongful death action is before us pursuant to Rule 54(b), North Dakota Rules of Civil Procedure.^[1] Defendant Lenny's Bar (Lenny's) appeals from the trial court's partial summary judgment and order, wherein the court concluded as a matter of law that it had personal jurisdiction over Lenny's and that North Dakota's dram shop act as codified at § 5-01-06, North Dakota Century Code, can be applied to assess liability against a Montana bar. Lenny's contends that as a matter of law it lacked sufficient minimum contacts with North Dakota for this state to assert personal jurisdiction under the long-arm provisions of Rule 4(b), NDRCivP. Lenny's also asserts that North Dakota's dram shop act has no extraterritorial effect. For the reasons stated below, we conclude that the trial court erred in determining that a Montana bar could be liable under North Dakota's dram shop act and that it is unnecessary for us to address the personal jurisdiction issue.

On the evening of September 19, 1980, Michael J. Bottonsek (Bottonsek) and his brother Patrick drove from Williston, North Dakota, to Bainville, Montana with Patty Jean Thoring and Jolene McGillis, ostensibly to celebrate Miss McGillis's birthday. Bainville is a small town about twenty-four miles from Williston and eight miles west of the North Dakota border. Lenny's is owned and operated by Montana residents Earl L. LaCounte and Janice C. LaCounte. It is located in Bainville and is regulated by Montana's licensing and liquor control laws.

At the time material to this action, Montana's legal drinking age was nineteen and North Dakota's was twenty-one. Both Patty Jean Thoring and Jolene McGillis were under twenty-one on September 19, 1980, when some or all members of the Bottonsek party consumed intoxicating beverages at Lenny's.

Returning from Bainville to Williston in the early morning hours of September 20, 1980, Bottonsek drove his vehicle on the wrong side of a divided highway just outside Williston and collided head-on with a vehicle driven by Harold Nehring. Miss Thoring, Miss McGillis and Mr. Nehring all died from the collision. Morris Thoring (Thoring), as personal representative of Patty Jean Thoring's estate and as conservator and guardian of Patty Jean Thoring's minor son, Shawn Michael Thoring, brought this wrongful death action against Bottonsek and Lenny's.

Thoring's complaint alleged that Lenny's was specifically liable under the North Dakota Civil Damage Act, § 5-01-06, NDCC (dram shop act),^[2] as well as under the laws and statutes of Montana and the common law of North Dakota and Montana. Lenny's answer raised several affirmative defenses, [588] among them failure to state a claim and lack of personal jurisdiction. Lenny's then moved for summary judgment on the issue of personal jurisdiction or, in the alternative, for partial summary judgment on the issue of the extraterritorial effect of North Dakota's dram shop act. The trial court ruled against Lenny's on both issues and Lenny's appealed to this court. The record on appeal consists of depositions, affidavits and other supporting documents filed with the motion for summary judgment.

It is important to note that while Montana imposes criminal liability on tavern keepers who violate its liquor control laws, it has no statutory provision that imposes civil liability on tavern keepers for injuries that result from furnishing intoxicating beverages to a minor or to a person who is already intoxicated. The Montana Supreme Court has so far declined to fashion a common law liability for tavern keepers or social hosts in dram shop situations.^[3] If we assume that North Dakota has personal jurisdiction over Lenny's, unless our dram shop act has extraterritorial effect, for all intents and purposes Thoring would have no remedy in a North Dakota court. Common law has been superseded by the dram shop act. See § 1-01-06, NDCC. The only way Lenny's could be held liable would be under Montana common law which can only be created by a Montana court.

Can North Dakota's dram shop act be applied beyond our borders to hold a Montana bar owner liable for injuries to North Dakota residents resulting from an automobile accident that occurred in North Dakota? This court has not previously had the opportunity to consider that question. Other jurisdictions have confronted the problem and we may look to their decisions for guidance.

The federal district court in North Dakota has considered the dram shop act in a conflict-type situation, but the real issue in that case concerned choice of law. See Trapp v. 4-10 Investment Corporation, 424 F.2d 1261 (8th Cir.1970). In Trapp, a Fargo liquor store sold beer to Minnesota minors. The purchasers and other minors then consumed the beer at a keg party at a Minnesota lake cottage. One of the minors was shortly thereafter involved in an automobile collision in Moorhead, Minnesota. The court concluded that North Dakota would apply its own dram shop act under the facts present in that case and commented that the result would not contravene the interests or policies of Minnesota, which also had a dram shop act. Id. at [589] 1265. Holding a North Dakota liquor store proprietor liable under North Dakota's dram shop act for injuries sustained in an accident occurring in Minnesota, which would also hold the proprietor liable had the sale occurred in that state, differs considerably from the instant case where the sale took place in Montana, a state which would not impose civil liability on the proprietor.

A general discussion on the extraterritorial application of dram shop acts can be found in the annotation at 2 A.L.R.4th 952 (1980). The annotation does not contain any case where one state's dram shop statute has been applied to hold an out-of-state liquor vendor liable absent a dram shop statute or common law liability in the vendor's state. The parties have not cited such a case and our own research has not revealed any.

When the injury or death occurs outside the state of sale, some jurisdictions refuse to impose liability under the dram shop act of the place of sale even when the place of sale is the forum state. Thus Illinois will not give its dram shop act extraterritorial effect when the sale takes place in Illinois but the injuries are sustained outside Illinois. See, e.g., Waynick v. Chicago's Last Dept. Store, 269 F.2d 322 (7th Cir.1959), cert. denied, 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554 (1960); Graham v. General U.S. Grant Post No. 2665, V.F.W., 43 Ill.2d 1, 248 N.E.2d 657 (1969); Butler v. Wittland, 18 Ill.App.2d 578, 153 N.E.2d 106 (1958); Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 95 N.E.2d 512 (1950).

Other courts have held that the dram shop acts of the states where the sales took place determine the liabilities and rights of the parties, even when the injuries are sustained in a state other than the one of sale. Trapp, supra, presumably falls into this category. Those decisions giving apparent extraterritorial effect to the dram shop act of the state where the sale took place mostly did so by abandoning lex loci delicti as a choice of law rule when its application would preclude recovery.^[4] This resulted in applying the law of the state of sale to the vendor rather than in giving that dram shop act extraterritorial effect. See, e.g., Zucker v. Vogt, 329 F.2d 426 (2d Cir.1964); Osborn v. Borchetta, 20 Conn.Supp. 163, 129 A.2d 238 (1956); Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957). Unlike the instant case, in all these cases the state of sale had a dram shop act.

The few cases that have imposed civil liability on a seller of alcoholic beverages in one state for injuries sustained in another state have done so on the basis of common law negligence liability, not on the basis of statutory dram shop liability. See Blamey v. Brown, 270 N.W.2d 884 (Minn.1978), cert. denied, 444 U.S. 1070, 100 S.Ct. 1013, 62 L.Ed.2d 751 (1980), and Bernhard v. Harrah's Club, 16 Cal.3d 313, 546 P.2d 719, 128 Cal.Rptr. 215 (1976), cert. denied, 429 U.S. 859, 97 S.Ct. 159, 50 L.Ed.2d 136 (1976).

California first imposed dram shop liability based on common law negligence principles in Vesely v. Sager, 5 Cal.3d 153, 486 P.2d 151, 95 Cal.Rptr. 623 (1971), a case which did not involve a choice of law situation.

In Bernhard, 128 Cal.Rptr. at 222, 546 P.2d at 726, the California Supreme Court noted that a violation of the California criminal law making it a misdemeanor to sell liquor to intoxicated persons could not be used as a basis for imposing civil liability on a Nevada resident. The court then used the governmental interest analysis approach, which goes beyond significant contacts, to resolve the choice of law issue and applied California common law dram shop liability to hold the Nevada tavern owner liable to a California resident for damages resulting from a California automobile collision. Nevada, like Montana, did not permit recovery from a tavern keeper.

The California Supreme Court later extended the common law dram shop liability [590] to include social hosts and other noncommercial providers of alcoholic beverages. Coulter v. Superior Court of San Mateo County, 21 Cal.3d 144, 577 P.2d 669, 145 Cal.Rptr. 534 (1978).

Although this liberal extension of common law negligence liability has not been judicially abrogated by the California Supreme Court, it has for all intents and purposes been legislatively overruled, as a California appellate court noted. Cable v. Sahara Tahoe Corporation, 93 Cal.App.3d 386, 155 Cal.Rptr. 770 (1979). The court in Cable refused to allow a California resident recovery from a Nevada corporate tavern keeper for injuries resulting from a Nevada accident. Cable can be factually distinguished from both Bernhard and the instant case because the state of sale and the state of the accident were the same. The opinion is valuable, however, for its extensive discussion of the history of California and Nevada dram shop liability.

The court in Cable noted that the only source of a California policy of protecting California residents injured by intoxicated persons who were sold or furnished alcoholic beverages outside California is the California Supreme Court's statement in Bernhard. The court concluded that the policy statement was expressly repudiated by the California legislature when it amended § 25602 of the Business and Professions Code to eliminate civil liability and § 1714 of the Civil Code to prohibit liability of any social host. Both amendments contained strong statements of intent to nullify the decisions in the Vesely, Bernhard and Coulter cases. Cable, 155 Cal.Rptr. at 773, 777.

The Blamey case, supra, is factually similar to the Thoring situation. Two Minnesota minors drove from the Twin Cities to Hudson, Wisconsin, where they purchased beer at a small neighborhood bar. The bar had no connection with Minnesota other than its proximity to the state border, the interstate highway and the large urban sprawl of metropolitan Minneapolis-St. Paul. After the minors returned to Minnesota the car was involved in a one-car accident. The injured passenger sued the Wisconsin liquor establishment.

The Minnesota Supreme Court determined that it had personal jurisdiction over the nonresident bar owner in Blamey and then imposed liability on the Wisconsin bar owner by finding common law negligence in making an illegal sale. It specifically denied the application of Minnesota's dram shop act to a non-Minnesota vendor. Blamey, 270 N.W.2d at 889-90. Blamey, and its precedent, Anderson v. Luitjens, 311 Minn. 203, 247 N.W.2d 913 (1976), have since been overruled on the personal jurisdiction issue by West American Insurance Company v. Westin, Inc., 337 N.W.2d 676 (Minn.1983).

In West American an eighteen-year-old Minnesota resident drove to a Wisconsin border city bar and on her return was involved in an accident in Minnesota. Minnesota's drinking age was nineteen and Wisconsin's was eighteen. Her insurer settled claims on her behalf and then brought action in Minnesota against the Wisconsin vendor for contribution or indemnity, alleging common law negligence in the making of an illegal sale. The Wisconsin vendor moved to dismiss for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. Because the court determined there was no personal jurisdiction it never reached the second issue.

Respect for territoriality and the integrity of state sovereignty, a primary consideration in determining the existence of personal jurisdiction, is also a factor in choice of law determinations. See Blamey, 270 N.W.2d at 890-91. The court in West American did not have to specifically confront the issue of which state's dram shop law applied, but dicta in the opinion substantially weakens Thoring's reliance on that portion of Blamey which has not been overruled. Noting that the difference between Minnesota and Wisconsin dram shop liability meant that Minnesota was the only forum where a remedy was available, the Minnesota Supreme Court said that fact was unfortunate but it was not sufficient [591] to confer jurisdiction upon Minnesota courts. West American, 337 N.W.2d at 681. So, too, it is not sufficient to give North Dakota's dram shop act extraterritorial effect.

A Wisconsin appellate court apparently shares this view and has refused to enforce a Minnesota judgment imposing dram shop liability on a Wisconsin bar for the sale of alcoholic beverages in Wisconsin. The injury-producing accident occurred in Minnesota. Citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), and West American, the Wisconsin court stated that "Minnesota is not entitled to export its public policy to Wisconsin, a coequal sovereign.... The judgment also would no longer be enforced in Minnesota.... Jurisdiction for this judgment was based on Minnesota Supreme Court decisions that have since been overruled." Hennes v. Loch Ness Bar, 117 Wis.2d 397, 344 N.W.2d 205, 206 (1983).

Thoring urges us to follow the rulings of the California Supreme Court in Bernhard and of the Minnesota Supreme Court in Blamey as persuasive authority for extending our dram shop act's application to impose civil liability on a Montana vendor. We decline to do so. Those cases not only imposed liability on the basis of common law negligence rather than on the basis of a dram shop statute, but also specifically disavowed the extraterritorial application of their respective dram shop statutes. Furthermore, the viability of both Bernhard and Blamey is very much in doubt because of subsequent legislative and judicial action.

We conclude that North Dakota's dram shop act as codified at § 5-01-06, NDCC, has no extraterritorial effect under the circumstances here where the sale took place outside of North Dakota, and that the trial court erred when it held as a matter of law that § 5-01-06 applies to Lenny's. Our holding today is strictly limited to the determination that North Dakota's dram shop act applies only to North Dakota vendors. We make no determination regarding the possibility of the Montana court reconsidering its previous rulings.

We recognize that in the usual situation a court must consider whether or not it has jurisdiction before it considers the applicability of a statute. In the instant case, however, our determination that North Dakota's dram shop act applies only to North Dakota vendors is dispositive of the appeal, making it unnecessary for us to reach the issue of personal jurisdiction. As we have stated previously, "questions, the answers to which are not necessary to the determination of a case, need not be considered." Hospital Services v. Brooks, 229 N.W.2d 69, 71 (N.D.1975).

Reversed.

ERICKSTAD, C.J., and GIERKE, SAND and VANDE WALLE, JJ., concur.

[1] Rule 54(b) authorizes the trial court to direct the entry of a final judgment as to one or more but fewer than all of the claims presented in an action upon an express determination that there is no just reason for delay.

[2]The language of § 5-01-06, NDCC, in effect at the time this action was commenced is:

"5-01-06. Recovery of damages resulting from intoxication.—Every wife, child, parent, guardian, employer, or other person who shall be injured in person, property or means of support by any intoxicated person, or in consequence of intoxication, shall have a right of action against any person who shall have caused such intoxication by disposing, selling, bartering, or giving away alcoholic beverages contrary to statute for all damages sustained."

The section was amended by the 1983 Legislative Assembly to correct sex discriminatory language and to make special reference to the damages to which the survivors are entitled if death results. Those changes do not affect the disposition of this appeal.

[3] A Montana federal district court, in the absence of any controlling Montana Supreme Court authority, held that under the particular circumstances of the case before it, the sale and serving of liquor to an Air Force person in violation of Montana law was a proximate cause of the automobile accident and resulting injuries to the plaintiff passenger. Deeds v. United States, 306 F.Supp. 348 (D.Mont.1969). More recently, the Montana Supreme Court has ignored, distinguished or chosen not to follow the federal district court's example in Deeds. In a wrongful death action against a bar for the death of a 17-year-old girl who drowned in a creek adjacent to a parking lot the court agreed with the bar's contention that the plaintiff could not recover anything because the proximate cause of the girl's death was her voluntary intoxication and failure to exercise due care for her own safety. Folda v. City of Bozeman, 177 Mont. 537, 582 P.2d 767 (1978). The deceased patron's contributory negligence in becoming intoxicated was also held to preclude any possible recovery from the bar owners in Swartzenberger v. Billings Labor Temple, 179 Mont. 145, 586 P.2d 712 (1978), although the court apparently left open the possibility that a bar keeper's serving of intoxicating beverages could constitute negligence per se under some circumstances. In Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979), the court held that the sanctions for violations of Montana's liquor laws did not create a civil cause of action in favor of third persons injured as a result of a minor having been furnished alcoholic beverages. While it is arguable that the decision in Runge is limited to situations where social hosts furnish alcoholic beverages to minors, dicta indicates otherwise. The Montana Supreme Court remarked that its recent holdings (in Folda and Swartzenberger) affirmed its statement of the law that "the seller of intoxicant is not liable in tort for the reason that his act is not the efficient cause of the damage. The proximate cause is the act of him who imbibes the liquor." Runge, 589 P.2d at 147, citing Nevin v. Carlasco, 139 Mont. 512, 515-16, 365 P.2d 637, 639 (1961).

[4] This court abandoned "lex loci delicti" and adopted the "significant-contacts" rule in Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972).

CERTIORARI TO THE SUPREME COURT OF NEVADA.

[489] O'CONNOR, J., delivered the opinion for a unanimous Court.

Felix E. Leatherwood, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor, David S. Chaney, Senior Assistant Attorney General, and William Dean Freeman, Lead Supervising Deputy Attorney General.

[490] H. Bartow Farr III argued the cause for respondents. With him on the brief were Peter C. Bernhard and Donald J. Kula.^[*]

JUSTICE O'CONNOR delivered the opinion of the Court.

We granted certiorari to resolve whether the Nevada Supreme Court's refusal to extend full faith and credit to California's statute immunizing its tax collection agency from suit violates Article IV, § 1, of the Constitution. We conclude it does not, and we therefore affirm the judgment of the Nevada Supreme Court.

I 

Respondent Gilbert P. Hyatt (hereinafter respondent) filed a "part-year" resident income tax return in California for 1991. App. to Pet. for Cert. 54. In the return, respondent represented that as of October 1, 1991, he had ceased to be a California resident and had become a resident of Nevada. In 1993, petitioner California Franchise Tax Board (CFTB) commenced an audit to determine whether respondent had underpaid state income taxes. Ibid. The audit focused on [491] respondent's claim that he had changed residency shortly before receiving substantial licensing fees for certain patented inventions related to computer technology.

At the conclusion of its audit, CFTB determined that respondent was a California resident until April 3, 1992, and accordingly issued notices of proposed assessments for income taxes for 1991 and 1992 and imposed substantial civil fraud penalties. Id., at 56-57, 58-59. Respondent protested the proposed assessments and penalties in California through CFTB's administrative process. See Cal. Rev. & Tax. Code Ann. §§ 19041, 19044-19046 (West 1994).

On January 6, 1998, with the administrative protest ongoing in California, respondent filed a lawsuit against CFTB in Nevada in Clark County District Court. Respondent alleges that CFTB directed "numerous and continuous contacts ... at Nevada" and committed several torts during the course of the audit, including invasion of privacy, outrageous conduct, abuse of process, fraud, and negligent misrepresentation. App. to Pet. for Cert. 51-52, 54. Respondent seeks punitive and compensatory damages. Id., at 51-52. He also sought a declaratory judgment "confirm[ing] [his] status as a Nevada resident effective as of September 26, 1991," id., at 51, but the District Court dismissed the claim for lack of subject matter jurisdiction on April 16, 1999, App. 93-95.

During the discovery phase of the Nevada lawsuit, CFTB filed a petition in the Nevada Supreme Court for a writ of mandamus, or in the alternative, for a writ of prohibition, challenging certain of the District Court's discovery orders. While that petition was pending, CFTB filed a motion in the District Court for summary judgment or, in the alternative, for dismissal for lack of jurisdiction. CFTB argued that the District Court lacked subject matter jurisdiction because principles of sovereign immunity, full faith and credit, choice of law, comity, and administrative exhaustion all required that the District Court apply California law, under which:

[492] "Neither a public entity nor a public employee is liable for an injury caused by:

"(a) Instituting any judicial or administrative proceeding or action for or incidental to the assessment or collection of a tax [or]

"(b) An act or omission in the interpretation or application of any law relating to a tax." Cal. Govt. Code Ann. § 860.2 (West 1995).

The District Court denied CFTB's motion for summary judgment or dismissal, prompting CFTB to file a second petition in the Nevada Supreme Court. This petition sought a writ of mandamus ordering the dismissal of the case, or in the alternative, a writ of prohibition and mandamus limiting the scope of the suit to claims arising out of conduct that occurred in Nevada.

On June 13, 2001, the Nevada Supreme Court granted CFTB's second petition, dismissed the first petition as moot, and ordered the District Court to enter summary judgment in favor of CFTB. App. to Pet. for Cert. 38-43. On April 4, 2002, however, the court granted respondent's petition for rehearing, vacated its prior ruling, granted CFTB's second petition in part, and denied it in part. Id., at 5-18. The court held that the District Court "should have declined to exercise its jurisdiction over the underlying negligence claim under comity principles" but that the intentional tort claims could proceed to trial. Id., at 7.

The Nevada Supreme Court noted that both Nevada and California have generally waived their sovereign immunity from suit in state court and "have extended the waivers to their state agencies or public employees except when state statutes expressly provide immunity." Id., at 9-10 (citing Nev. Rev. Stat. § 41.031 (1996); Cal. Const., Art. 3, § 5; and Cal. Govt. Code Ann. § 820 (West 1995)). Whereas Nevada has not conferred immunity on its state agencies for intentional torts committed within the course and scope of [493] employment, the court acknowledged that "California has expressly provided [CFTB] with complete immunity." App. to Pet. for Cert. 10 (citing Cal. Govt. Code Ann. § 860.2 (West 1995) and Mitchell v. Franchise Tax Board, 183 Cal. App. 3d 1133, 228 Cal. Rptr. 750 (1986)). To determine which State's law should apply, the court applied principles of comity.

Though the Nevada Supreme Court recognized the doctrine of comity as "an accommodation policy, under which the courts of one state voluntarily give effect to the laws and judicial decisions of another state out of deference and respect, to promote harmonious interstate relations," the court also recognized its duty to determine whether the application of California law "would contravene Nevada's policies or interests," giving "due regard to the duties, obligations, rights and convenience of Nevada's citizens." App. to Pet. for Cert. 11. "An investigation is generally considered to be a discretionary function," the court observed, "and Nevada provides its [own] agencies with immunity for the performance of a discretionary function even if the discretion is abused." Id., at 12. "[A]ffording [CFTB] statutory immunity for negligent acts," the court therefore concluded, "does not contravene any Nevada interest in this case." Ibid. The court accordingly held that "the district court should have declined to exercise its jurisdiction" over respondent's negligence claim under principles of comity. Id., at 7. With respect to the intentional torts, however, the court held that "affording [CFTB] statutory immunity ... does contravene Nevada's policies and interests in this case." Id., at 12. Because Nevada "does not allow its agencies to claim immunity for discretionary acts taken in bad faith, or for intentional torts committed in the course and scope of employment," the court held that "Nevada's interest in protecting its citizens from injurious intentional torts and bad faith acts committed by sister states' government employees" should be accorded [494] greater weight "than California's policy favoring complete immunity for its taxation agency." Id., at 12-13.

We granted certiorari to resolve whether Article IV, § 1, of the Constitution requires Nevada to give full faith and credit to California's statute providing its tax agency with immunity from suit, 537 U. S. 946 (2002), and we now affirm. 

II 

The Constitution's Full Faith and Credit Clause provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Art. IV, § 1. As we have explained, "[o]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments." Baker v. General Motors Corp., 522 U. S. 222, 232 (1998). Whereas the full faith and credit command "is exacting" with respect to "[a] final judgment ... rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment," id., at 233, it is less demanding with respect to choice of laws. We have held that the Full Faith and Credit Clause does not compel "`a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.'" Sun Oil Co. v. Wortman, 486 U. S. 717, 722 (1988) (quoting Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493, 501 (1939)).

The State of Nevada is undoubtedly "competent to legislate" with respect to the subject matter of the alleged intentional torts here, which, it is claimed, have injured one of its citizens within its borders. "`[F]or a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.'" [495] Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 818 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U. S. 302, 312-313 (1981) (plurality opinion)); see 472 U. S., at 822-823. Such contacts are manifest in this case: the plaintiff claims to have suffered injury in Nevada while a resident there; and it is undisputed that at least some of the conduct alleged to be tortious occurred in Nevada, Brief for Petitioner 33-34, n. 16. See, e. g., Carroll v. Lanza, 349 U. S. 408, 413 (1955) ("The State where the tort occurs certainly has a concern in the problems following in the wake of the injury"); Pacific Employers Ins. Co. v. Industrial Accident Comm'n, supra, at 503 ("Few matters could be deemed more appropriately the concern of the state in which [an] injury occurs or more completely within its power").

CFTB does not contend otherwise. Instead, CFTB urges this Court to adopt a "new rule" mandating that a state court extend full faith and credit to a sister State's statutorily recaptured sovereign immunity from suit when a refusal to do so would "interfer[e] with a State's capacity to fulfill its own sovereign responsibilities." Brief for Petitioner 13 (internal quotation marks omitted).

We have, in the past, appraised and balanced state interests when invoking the Full Faith and Credit Clause to resolve conflicts between overlapping laws of coordinate States. See Bradford Elec. Light Co. v. Clapper, 286 U. S. 145 (1932) (holding that the Constitution required a federal court sitting in New Hampshire to apply a Vermont workers' compensation statute in a tort suit brought by the administrator of a Vermont worker killed in New Hampshire). This balancing approach quickly proved unsatisfactory. Compare Alaska Packers Assn. v. Industrial Accident Comm'n of Cal., 294 U. S. 532, 550 (1935) (holding that a forum State, which was the place of hiring but not of a claimant's domicile, could apply its own law to compensate for an accident in another State, because "[n]o persuasive reason" was shown for requiring application of the law of the State where the [496] accident occurred), with Pacific Employers Ins. Co. v. Industrial Accident Comm'n, supra, at 504-505 (holding that the State where an accident occurred could apply its own workers' compensation law and need not give full faith and credit to that of the State of hiring and domicile of the employer and employee). As Justice Robert H. Jackson, recounting these cases, aptly observed, "it [is] difficult to point to any field in which the Court has more completely demonstrated or more candidly confessed the lack of guiding standards of a legal character than in trying to determine what choice of law is required by the Constitution." Full Faith and Credit — The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1, 16 (1945).

In light of this experience, we abandoned the balancing-of-interests approach to conflicts of law under the Full Faith and Credit Clause. Allstate Ins. Co. v. Hague, 449 U. S., at 308, n. 10 (plurality opinion); id., at 322, n. 6 (STEVENS, J., concurring in judgment); id., at 339, n. 6 (Powell, J., dissenting). We have recognized, instead, that "it is frequently the case under the Full Faith and Credit Clause that a court can lawfully apply either the law of one State or the contrary law of another." Sun Oil Co. v. Wortman, supra, at 727. We thus have held that a State need not "substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." Pacific Employers Ins. Co. v. Industrial Accident Comm'n, supra, at 501; see Baker v. General Motors Corp., supra, at 232; Sun Oil Co. v. Wortman, supra, at 722; Phillips Petroleum Co. v. Shutts, supra, at 818-819. Acknowledging this shift, CFTB contends that this case demonstrates the need for a new rule under the Full Faith and Credit Clause that will protect "core sovereignty" interests as expressed in state statutes delineating the contours of the State's immunity from suit. Brief for Petitioner 13.

We disagree. We have confronted the question whether the Full Faith and Credit Clause requires a forum State to [497] recognize a sister State's legislatively recaptured immunity once before. In Nevada v. Hall, 440 U. S. 410 (1979), an employee of the University of Nevada was involved in an automobile accident with California residents, who filed suit in California and named Nevada as a defendant. The California courts refused to apply a Nevada statute that capped damages in tort suits against the State on the ground that "to surrender jurisdiction or to limit respondents' recovery to the $25,000 maximum of the Nevada statute would be obnoxious to its statutorily based policies of jurisdiction over nonresident motorists and full recovery." Id., at 424.

We affirmed, holding, first, that the Constitution does not confer sovereign immunity on States in the courts of sister States. Id., at 414-421. Petitioner does not ask us to reexamine that ruling, and we therefore decline the invitation of petitioner's amici States, see Brief for State of Florida et al. as Amici Curiae 2, to do so. See this Court's Rule 14.1(a); Mazer v. Stein, 347 U. S. 201, 206, n. 5 (1954) ("We do not reach for constitutional questions not raised by the parties").

The question presented here instead implicates Hall's second holding: that the Full Faith and Credit Clause did not require California to apply Nevada's sovereign immunity statutes where such application would violate California's own legitimate public policy. 440 U. S., at 424. The Court observed in a footnote:

"California's exercise of jurisdiction in this case poses no substantial threat to our constitutional system of cooperative federalism. Suits involving traffic accidents occurring outside of Nevada could hardly interfere with Nevada's capacity to fulfill its own sovereign responsibilities. We have no occasion, in this case, to consider whether different state policies, either of California or of Nevada, might require a different analysis or a different result." Id., at 424, n. 24.

[498] CFTB asserts that an analysis of this lawsuit's effects should lead to a different result: that the Full Faith and Credit Clause requires Nevada to apply California's immunity statute to avoid interference with California's "sovereign responsibility" of enforcing its income tax laws. Brief for Petitioner 13.

Our past experience with appraising and balancing state interests under the Full Faith and Credit Clause counsels against adopting CFTB's proposed new rule. Having recognized, in Hall, that a suit against a State in a sister State's court "necessarily implicates the power and authority" of both sovereigns, 440 U. S., at 416, the question of which sovereign interest should be deemed more weighty is not one that can be easily answered. Yet petitioner's rule would elevate California's sovereignty interests above those of Nevada, were we to deem this lawsuit an interference with California's "core sovereign responsibilities." We rejected as "unsound in principle and unworkable in practice" a rule of state immunity from federal regulation under the Tenth Amendment that turned on whether a particular state government function was "integral" or "traditional." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546-547 (1985). CFTB has convinced us of neither the relative soundness nor the relative practicality of adopting a similar distinction here.

Even were we inclined to embark on a course of balancing States' competing sovereign interests to resolve conflicts of laws under the Full Faith and Credit Clause, this case would not present the occasion to do so. There is no principled distinction between Nevada's interests in tort claims arising out of its university employee's automobile accident, at issue in Hall, and California's interests in the tort claims here arising out of its tax collection agency's residency audit. To be sure, the power to promulgate and enforce income tax laws is an essential attribute of sovereignty. See Franchise Tax Bd. of Cal. v. Postal Service, 467 U.S. 512, 523 (1984) [499] ("`[T]axes are the life-blood of government'" (quoting Bull v. United States, 295 U. S. 247, 259-260 (1935))). But the university employee's educational mission in Hall might also be so described. Cf. Brown v. Board of Education, 347 U. S. 483, 493 (1954) ("[E]ducation is perhaps the most important function of state and local governments").

If we were to compare the degree to which the allegedly tortious acts here and in Hall are related to a core sovereign function, we would be left to ponder the relationship between an automobile accident and educating, on one hand, and the intrusions alleged here and collecting taxes, on the other. We discern no constitutionally significant distinction between these relationships. To the extent CFTB complains of the burdens and expense of out-of-state litigation, and the diversion of state resources away from the performance of important state functions, those burdens do not distinguish this case from any other out-of-state lawsuit against California or one of its agencies.

States' sovereignty interests are not foreign to the full faith and credit command. But we are not presented here with a case in which a State has exhibited a "policy of hostility to the public Acts" of a sister State. Carroll v. Lanza, 349 U. S., at 413. The Nevada Supreme Court sensitively applied principles of comity with a healthy regard for California's sovereign status, relying on the contours of Nevada's own sovereign immunity from suit as a benchmark for its analysis. See App. to Pet. for Cert. 10-13.

In short, we heed the lessons learned as a result of Bradford Elec. Light Co. v. Clapper, 286 U. S. 145 (1932), and its progeny. Without a rudder to steer us, we decline to embark on the constitutional course of balancing coordinate States' competing sovereign interests to resolve conflicts of laws under the Full Faith and Credit Clause.

The judgment of the Nevada Supreme Court is affirmed.

It is so ordered.

[*] Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Richard E. Dornan, Attorney General of Florida, Jonathan A. Glogau, Barbara J. Ritchie, Acting Attorney General of Alaska, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective jurisdictions as follows: Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, James E. Ryan of Illinois, Steve Carter of Indiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Mike McGrath of Montana, Wayne Stenehjem of North Dakota, Betty D. Montgomery of Ohio, Anabelle Rodríguez of Puerto Rico, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry W. Kilgore of Virginia, and Darrell V. McGraw, Jr., of West Virginia; for the Multistate Tax Commission by Frank D. Katz; and for the National Governors Association et al. by Richard Ruda and James I. Crowley.

Sharon L. Browne filed a brief for the Pacific Legal Foundation as amicus curiae urging affirmance.

[315] COUNSEL

Frederick W. Stephenson for Plaintiff and Appellant.

Hardy, Erich & Brown and Leo H. Schuering, Jr., for Defendant and Respondent.

Robert List, Attorney General (Nevada), James H. Thompson, Chief Deputy Attorney General, and John H. Garvin as Amici Curiae on behalf of Defendant and Respondent.

OPINION

SULLIVAN, J.

Plaintiff appeals from a judgment of dismissal entered upon an order sustaining without leave to amend the general demurrer of defendant Harrah's Club to plaintiff's first amended complaint.

Plaintiff's complaint, containing only one count, alleged in substance the following: Defendant Harrah's Club, a Nevada corporation, owned and operated gambling establishments in the State of Nevada in which intoxicating liquors were sold, furnished to the public and given away for consumption on the premises. Defendant advertised for and solicited in California the business of California residents at such establishments knowing and expecting that many California residents would use the public highways in going to and from defendant's drinking and gambling establishments.

On July 24, 1971, Fern and Philip Myers, in response to defendant's advertisements and solicitations, drove from their California residence to defendant's gambling and drinking club in Nevada, where they stayed until the early morning hours of July 25, 1971. During their stay, the Myers were served numerous alcoholic beverages by defendant's employees, progressively reaching a point of obvious intoxication rendering them incapable of safely driving a car. Nonetheless defendant continued to serve and furnish the Myers alcoholic beverages.

[316] While still in this intoxicated state, the Myers drove their car back to California. Proceeding in a northeasterly direction on Highway 49, near Nevada City, California, the Myers' car, driven negligently by a still intoxicated Fern Myers, drifted across the center line into the lane of oncoming traffic and collided head-on with plaintiff Richard A. Bernhard, a resident of California, who was then driving his motorcycle along said highway. As a result of the collision plaintiff suffered severe injuries. Defendant's sale and furnishing of alcoholic beverages to the Myers, who were intoxicated to the point of being unable to drive safely, was negligent and was the proximate cause of the plaintiff's injuries in the ensuing automobile accident in California for which plaintiff prayed $100,000 in damages.

Defendant filed a general demurrer to the first amended complaint. In essence it was grounded on the following contentions: that Nevada law denies recovery against a tavern keeper by a third person for injuries proximately caused by the former by selling or furnishing alcoholic beverages to an intoxicated patron who inflicts the injuries on the latter; that Nevada law governed since the alleged tort was committed by defendant in Nevada; and that section 25602 of the California Business and Professions Code which established the duty necessary for liability under our decision in Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal. Rptr. 623, 486 P.2d 151], was inapplicable to a Nevada tavern. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal. This appeal followed.

(1) We face a problem in the choice of law governing a tort action. As we have made clear on other occasions, we no longer adhere to the rule that the law of the place of the wrong is applicable in a California forum regardless of the issues before the court. (Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579 [114 Cal. Rptr. 106, 522 P.2d 666]; Reich v. Purcell (1967) 67 Cal.2d 551, 555 [63 Cal. Rptr. 31, 432 P.2d 727].) Rather we have adopted in its place a rule requiring an analysis of the respective interests of the states involved — the objective of which is "`to determine the law that most appropriately applies to the issue involved.'" (Hurtado, supra, at pp. 579-580, quoting from Reich, supra, at p. 555.)

The issue involved in the case at bench is the civil liability of defendant tavern keeper to plaintiff, a third person, for injuries allegedly caused by the former by selling and furnishing alcoholic beverages in Nevada to intoxicated patrons who subsequently injured plaintiff in [317] California. Two states are involved: (1) California — the place of plaintiff's residence and domicile, the place where he was injured, and the forum; and (2) Nevada — the place of defendant's residence and the place of the wrong.

We observe at the start that the laws of the two states — California and Nevada — applicable to the issue involved are not identical. California imposes liability on tavern keepers in this state for conduct such as here alleged. In Vesely v. Sager, supra, 5 Cal.3d 153, 166, this court rejected the contention that "civil liability for tavern keepers should be left to future legislative action.... First, liability has been denied in cases such as the one before us solely because of the judicially created rule that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication. As demonstrated, supra, this rule is patently unsound and totally inconsistent with the principles of proximate cause established in other areas of negligence law.... Second, the Legislature has expressed its intention in this area with the adoption of Evidence Code section 669, and Business and Professions Code section 25602.... It is clear that Business and Professions Code section 25602 [making it a misdemeanor to sell to an obviously intoxicated person] is a statute to which this presumption [of negligence, Evidence Code section 669] applies and that the policy expressed in the statute is to promote the safety of the people of California...." Nevada on the other hand refuses to impose such liability. In Hamm v. Carson City Nuggett, Inc. (1969) 85 Nev. 99 [450 P.2d 358, 359], the court held it would create neither common law liability nor liability based on the criminal statute banning sale of alcoholic beverages to a person who is drunk, because "if civil liability is to be imposed, it should be accomplished by legislative act after appropriate surveys, hearings, and investigations to ascertain the need for it and the expected consequences to follow." It is noteworthy that in Hamm the Nevada court in relying on the common law rule denying liability cited our decision in Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137], later overruled by us in Vesely to the extent that it was inconsistent with that decision. (See Vesely v. Sager, supra, 5 Cal.3d at p. 167.)

Although California and Nevada, the two "involved states" (Reich v. Purcell, supra, 67 Cal.2d 551, 553; see also Hurtado v. Superior Court, supra, 11 Cal.3d 574, 579), have different laws governing the issue presented in the case at bench, we encounter a problem in selecting the applicable rule of law only if both states have an interest in having their respective laws applied. (2) "[G]enerally speaking the forum will [318] apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. In such event he must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it. [Citations.]" (Hurtado, supra, at p. 581.)

Defendant contends that Nevada has a definite interest in having its rule of decision applied in this case in order to protect its resident tavern keepers like defendant from being subjected to a civil liability which Nevada has not imposed either by legislative enactment or decisional law. It is urged that in Hamm v. Carson City Nuggett, supra, 450 P.2d 358, 359, the Supreme Court of Nevada clearly delineated the policy underlying denial of civil liability of tavern keepers who sell to obviously intoxicated patrons: "Those opposed to extending liability point out that to hold otherwise would subject the tavern owner to ruinous exposure every time he poured a drink and would multiply litigation endlessly in a claim-conscious society. Every liquor vendor visited by the patron who became intoxicated would be a likely defendant in subsequent litigation flowing from the patron's wrongful conduct.... Judicial restraint is a worthwhile practice when the proposed new doctrine may have implications far beyond the perception of the court asked to declare it. They urge that if civil liability is to be imposed, it should be accomplished by legislative act after appropriate surveys, hearings, and investigations.... We prefer this point of view." Accordingly defendant argues that the Nevada rule of decision is the appropriate one for the forum to apply.

Plaintiff on the other hand points out that California also has an interest in applying its own rule of decision to the case at bench. California imposes on tavern keepers civil liability to third parties injured by persons to whom the tavern keeper has sold alcoholic beverages when they are obviously intoxicated "for the purpose of protecting members of the general public from injuries to person and damage to property resulting from the excessive use of intoxicating liquor." (Vesely v. Sager, supra, 5 Cal.3d 153, 165.) California, it is urged, has a special interest in affording this protection to all California residents injured in California.

(3) Thus, since the case at bench involves a California resident (plaintiff) injured in this state by intoxicated drivers and a Nevada resident tavern keeper (defendant) which served alcoholic beverages to them in Nevada, it is clear that each state has an interest in the application of its respective law of liability and nonliability. It goes [319] without saying that these interests conflict. Therefore, unlike Reich v. Purcell, supra, 67 Cal.2d 551, and Hurtado v. Superior Court, supra, 11 Cal.3d 574, where we were faced with "false conflicts," in the instant case for the first time since applying a governmental interest analysis as a choice of law doctrine in Reich, we are confronted with a "true" conflicts case. We must therefore determine the appropriate rule of decision in a controversy where each of the states involved has a legitimate but conflicting interest in applying its own law in respect to the civil liability of tavern keepers.

The search for the proper resolution of a true conflicts case, while proceeding within orthodox parameters of governmental interest analysis, has generated much scholarly examination and discussion.^[1] The father of the governmental interest approach,^[2] Professor Brainerd Currie, originally took the position that in a true conflicts situation the law of the forum should always be applied. (Currie, Selected Essays on [320] Conflicts of Laws (1963) p. 184.) However, upon further reflection, Currie suggested that when under the governmental interest approach a preliminary analysis reveals an apparent conflict of interest upon the forum's assertion of its own rule of decision, the forum should reexamine its policy to determine if a more restrained interpretation of it is more appropriate. "[T]o assert a conflict between the interests of the forum and the foreign state is a serious matter; the mere fact that a suggested broad conception of a local interest will create conflict with that of a foreign state is a sound reason why the conception should be reexamined, with a view to a more moderate and restrained interpretation both of the policy and of the circumstances in which it must be applied to effectuate the forum's legitimate purpose.... An analysis of this kind ... was brilliantly performed by Justice Traynor in Bernkrant v. Fowler (1961) 55 Cal.2d 588 [12 Cal. Rptr. 266, 360 P.2d 906]." (Currie, The Disinterested Third State (1963) 28 Law & Contemp. Prob., pp. 754, 757; see also Sedler in Symposium, Conflict of Laws Round Table, supra, 49 Texas L.Rev. 211, at pp. 224-225.) This process of reexamination requires identification of a "real interest as opposed to a hypothetical interest" on the part of the forum (Sedler, Value of Principled Preferences, 49 Texas L.Rev. 224) and can be approached under principles of "comparative impairment." (Baxter, Choice of Law and the Federal System, supra, 16 Stan. L.Rev. 1-22; Horowitz, The Law of Choice of Law in California — A Restatement, supra, 21 UCLA L.Rev. 719, 748-758.)

Once this preliminary analysis has identified a true conflict of the governmental interests involved as applied to the parties under the particular circumstances of the case, the "comparative impairment" approach to the resolution of such conflict seeks to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state. This analysis proceeds on the principle that true conflicts should be resolved by applying the law of the state whose interest would be the more impaired if its law were not applied. Exponents of this process of analysis emphasize that it is very different from a weighing process. The court does not "`weigh' the conflicting governmental interests in the sense of determining which conflicting law manifested the `better' or the `worthier' social policy on the specific issue. An attempted balancing of conflicting state policies in that sense ... is difficult to justify in the context of a federal system in which, within constitutional limits, states are empowered to mold their policies as they wish.... [The process] can accurately be described as ... accommodation of conflicting state policies, as a problem of allocating domains of law-making power in multi-state contexts — limitations on the reach of [321] state policies — as distinguished from evaluating the wisdom of those policies.... [E]mphasis is placed on the appropriate scope of conflicting state policies rather than on the `quality' of those policies...." (Horowitz, The Law of Choice of Law in California — A Restatement, supra, 21 UCLA L.Rev. 719, 753; see also Baxter, Choice of Law and the Federal System, supra, 16 Stan.L.Rev. 1, 18-19.) However, the true function of this methodology can probably be appreciated only casuistically in its application to an endless variety of choice of law problems. (See, e.g., the hypothetical situations set forth in Baxter, op. cit., pp. 10-17.)

Although the concept and nomenclature of this methodology may have received fuller recognition at a later time, it is noteworthy that the core of its rationale was applied by Justice Traynor in his opinion for this court in People v. One 1953 Ford Victoria (1957) 48 Cal.2d 595 [311 P.2d 480]. There in a proceeding to forfeit an automobile for unlawful transportation of narcotics we dealt with the question whether a chattel mortgage of the vehicle given in Texas and, admittedly valid both in that state and this, succumbed to the forfeiture proceedings. The purchaser of the car, having executed a note and chattel mortgage for the unpaid purchase price, without the consent of the mortgagee drove the vehicle to California where he used it to transport marijuana. Applicable California statutes made it clear that they did not contemplate the forfeiture of the interest of an innocent mortgagee, that is a person whose "interest was created after a reasonable investigation of the moral responsibility, character and reputation of the purchaser and without any knowledge that the vehicle was being, or was to be, used for the purpose charged...." Texas had no similar statute; nor had the mortgagee, though proving that the mortgage was bona fide, also proved that he had made the above reasonable investigation of the mortgagor.

It was clear that Texas had an interest in seeing that valid security interests created upon the lawful purchase of automobiles in Texas be enforceable and recognized. California had an interest in controlling the transportation of narcotics. Each interest was at stake in the case, since the chattel mortgage had been validly created in Texas and the car was used to transport narcotics in California. The crucial question confronting the court was whether the "reasonable investigation" required by statute of a California mortgagee applied to the Texas mortgagee. Employing what was in substance a "comparative impairment" approach, the court answered the question in the negative. "It is contended that a holding that the `reasonable investigation' requirement is not [322] applicable to respondent will subvert the enforcement of California's narcotics laws. We are not persuaded that such dire consequences will ensue. The state may still forfeit the interest of the wrongdoer. It has done so in this case. Moreover, the Legislature has made plain its purpose not to forfeit the interests of innocent mortgagees. It has not made plain that `reasonable investigation' of the purchaser is such an essential element of innocence that it must be made even by an out-of-state mortgagee although such mortgagee could not reasonably be expected to make such investigation." (Id., at p. 599.)

Mindful of the above principles governing our choice of law, we proceed to reexamine the California policy underlying the imposition of civil liability upon tavern keepers. At its broadest limits this policy would afford protection to all persons injured in California by intoxicated persons who have been sold or furnished alcoholic beverages while intoxicated regardless of where such beverages were sold or furnished. Such a broad policy would naturally embrace situations where the intoxicated actor had been provided with liquor by out-of-state tavern keepers. Although the State of Nevada does not impose such civil liability on its tavern keepers, nevertheless they are subject to criminal penalties under a statute making it unlawful to sell or give intoxicating liquor to any person who is drunk or known to be an habitual drunkard. (See Nev. Rev. Stats. 202.100; see Hamm v. Carson City Nuggett, Inc., supra, 450 P.2d 358.)

We need not, and accordingly do not here determine the outer limits to which California's policy should be extended, for it appears clear to us that it must encompass defendant, who as alleged in the complaint, "advertis[es] for and otherwise solicit[s] in California the business of California residents at defendant HARRAH'S CLUB Nevada drinking and gambling establishments, knowing and expecting said California residents, in response to said advertising and solicitation, to use the public highways of the State of California in going and coming from defendant HARRAH'S CLUB Nevada drinking and gambling establishments." Defendant by the course of its chosen commercial practice has put itself at the heart of California's regulatory interest, namely to prevent tavern keepers from selling alcoholic beverages to obviously intoxicated persons who are likely to act in California in the intoxicated state. It seems clear that California cannot reasonably effectuate its policy if it does not extend its regulation to include out-of-state tavern keepers such as defendant who regularly and purposely sell intoxicating beverages to California residents in places and under conditions in which it is [323] reasonably certain these residents will return to California and act therein while still in an intoxicated state. California's interest would be very significantly impaired if its policy were not applied to defendant.

Since the act of selling alcoholic beverages to obviously intoxicated persons is already proscribed in Nevada, the application of California's rule of civil liability would not impose an entirely new duty requiring the ability to distinguish between California residents and other patrons. Rather the imposition of such liability involves an increased economic exposure, which, at least for businesses which actively solicit extensive California patronage, is a foreseeable and coverable business expense. Moreover, Nevada's interest in protecting its tavern keepers from civil liability of a boundless and unrestricted nature will not be significantly impaired when as in the instant case liability is imposed only on those tavern keepers who actively solicit California business.^[3]

Therefore, upon reexamining the policy underlying California's rule of decision and giving such policy a more restrained interpretation for the purpose of this case pursuant to the principles of the law of choice of law discussed above, we conclude that California has an important and abiding interest in applying its rule of decision to the case at bench, that the policy of this state would be more significantly impaired if such rule were not applied and that the trial court erred in not applying California law.

Defendant argues, however, that even if California law is applied, the demurrer was nonetheless properly sustained because the tavern keeper's duty stated in Vesely v. Sager, supra, 5 Cal.3d 153, is based on Business and Professions Code section 25602, which is a criminal statute and thus without extraterritorial effect. It is quite true, as defendant argues, that in [324] Vesely we determined "that civil liability results when a vendor furnishes alcoholic beverages to a customer in violation of Business and Professions Code section 25602 and each of the conditions set forth in Evidence Code section 669, subdivision (a), is established." (5 Cal.3d at p. 157.)

It is also clear, as defendant's argument points out, that since, unlike the California vendor in Vesely, defendant was a Nevada resident which furnished the alcoholic beverage to the Myers in that state, the above California statute had no extraterritorial effect and that civil liability could not be posited on defendant's violation of a California criminal law. We recognize, therefore, that we cannot make the same determination as quoted above with respect to defendant that we made with respect to the defendant vendor in Vesely.

However, our decision in Vesely was much broader than defendant would have it. There, at the very outset of our opinion, we declared that the traditional common law rule denying recovery on the ground that the furnishing of alcoholic beverage is not the proximate cause of the injuries inflicted on a third person by an intoxicated individual "is patently unsound." (5 Cal.3d at p. 157.) Observing that "[u]ntil fairly recently, it was uniformly held that [such] an action could not be maintained at common law" (id., at p. 158) and reviewing in detail the common law rule (id., at pp. 158-164) we concluded that "the furnishing of an alcoholic beverage to an intoxicated person may be a proximate cause of injuries inflicted by that individual upon a third person." We reasoned: "If such furnishing is a proximate cause, it is so because the consumption, resulting intoxication, and injury-producing conduct are foreseeable intervening causes, or at least the injury-producing conduct is one of the hazards which makes such furnishing negligent." (Id., at p. 164.)

Proceeding to the question of the tavern keeper's duty in this respect and rejecting his contention that civil liability for tavern keepers should be left to future legislative action, we noted that "liability has been denied in cases such as the one before us solely because of the judicially created rule that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication. As demonstrated, supra, this rule is patently unsound and totally inconsistent with the principles of proximate cause established in other areas of negligence law. Other common law tort rules which were determined to be lacking in validity have been abrogated by this court (see Gibson v. Gibson (1971) 3 Cal.3d 914 [92 Cal. Rptr. 288, 479 P.2d 648]; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal. Rptr. 89, 359 P.2d 457]), and [325] there is no sound reason for retaining the common law rule presented in this case." (5 Cal.3d at p. 166.)

In sum, our opinion in Vesely struck down the old common law rule of nonliability constructed on the basis that the consumption, not the sale, of alcoholic beverages was the proximate cause of the injuries inflicted by the intoxicated person. Although we chose to impose liability on the Vesely defendant on the basis of his violating the applicable statute, the clear import of our decision was that there was no bar to civil liability under modern negligence law. Certainly, we said nothing in Vesely indicative of an intention to retain the former rule that an action at common law does not lie. The fact then, that in the case at bench, section 25602 of the Business and Professions Code is not applicable to this defendant in Nevada so as to warrant the imposition of civil liability on the basis of its violation, does not preclude recovery on the basis of negligence apart from the statute. Pertinent here is our observation in Rowland v. Christian (1968) 69 Cal.2d 108, 118-119 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]: "It bears repetition that the basic policy of this state set forth by the Legislature in section 1714 of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property."

The judgment is reversed and the cause is remanded to the trial court with directions to overrule the demurrer and to allow defendant a reasonable time within which to answer.

Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Clark, J., and Molinari, J.,^[4] concurred.

Respondent's petition for a rehearing was denied April 22, 1976. Richardson, J., did not participate therein.

[1] Baxter, Choice of Law and the Federal System (1963) 16 Stan.L.Rev. 1; Cavers, The Choice of Law Process (1965) pages 114-224: Horowitz, The Law of Choice of Law in California-A Restatement (1974) 21 UCLA L.Rev. 719, 748-758; Conflict of Laws Round Table: A Symposium (1972) 57 Iowa L.Rev. 1219-1270; Symposium, Conflict of Laws Round Table (1971) 49 Texas L.Rev. 211-245: Sedler, Reviews-Conflicts Commentary (1972) 50 Texas L.Rev. 1064-1083: Weintraub, Commentary on the Conflict of Laws (1971). We note that no case has been called to our attention, nor are we aware of one, which has discussed this problem in a context relevant to the case at bench.

[2] Traditionally the search for choice of law rules focused upon the interests of the immediate parties to the action in terms of their private rights. Thus, it concentrated "upon the same factors that would be dispositive in a similar case wholly internal to a single state. I cannot escape the conclusion that a search so oriented must prove unrewarding. Every choice-of-law case involves several parties, each of whom would prevail if the internal law of one rather than another state were applied. Each party is `right,' `worthy,' and `deserving' and `ought in all fairness' to prevail under one of the competing bodies of law and in the view of one of the competing groups of lawmakers. Fact situations which differ only in that they are internal to a single state have been assessed by the different groups of lawmakers, and each has reached a different value judgment on the rule best calculated to serve the overall interest of its community. If attention is confined to the circumstances of the immediate parties, the conflict between the internal laws and between the value judgments they are intended to implement cannot be resolved by the judge unless he is prepared to impose still another value judgment upon the controversy.... [¶] These difficulties can be avoided if normative criteria can be found which relate to the very aspects of a conflicts case that distinguish it from an analogous internal case. That such criteria can be elaborated in many, if not all, conflicts cases has been demonstrated by several writers who have urged that conflicts cases be resolved on the basis of the governmental interests involved.... [¶] [T]he process of resolving choice cases is necessarily one of allocating spheres of legal control among states. His [Professor Currie] thesis, like mine, is that the process of allocation should not be performed unconsciously, that the private interests in choice cases are necessarily in balance, and that the cases can be decided by viewing them as instances of conflicting states interests rather than of conflicting private interests." (Baxter, Choice of Law and the Federal System, supra, 16 Stan.L.Rev. 1, 5, 6, 22, fn. omitted.)

[3] Defendant asserts that Nevada's law must be applied because it is the law of the place of sale and cites three cases in support of that proposition. Trapp v. 4-10 Investment Corporation (8th Cir.1970) 424 F.2d 1261; Zucker v. Vogt (D.Conn 1961) 200 F. Supp. 340; and Schmidt v. Driscol Hotel (1957) 82 N.W.2d 365. It is true that all three cases applied the law of the place of sale of the alcohol, but not for that reason. In Trapp and Zucker all the states involved had dram shop acts which would permit civil liability and the federal courts determined that the applicable forum state would give effect to the common policy of liability for sale to intoxicated persons regardless of traditional tort conflict rules. Schmidt is the only case where one state. Wisconsin, did not have a dram shop act and the other state. Minnesota, did. However, in that case even though the injury occurred in Wisconsin, the alcohol was sold and consumed in Minnesota and all the parties involved were from Minnesota. Moreover, none of these cases involved a case of true conflict between two state interests where the court endeavored to resolve the conflict by resort to the principles of governmental interest analysis. They are therefore inapposite.

[4] Assigned by the Chairman of the Judicial Council.

[455] Walter F. Kawalec, III, Cherry Hill, argued the cause for appellant (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys).

Philip G. Auerbach, Red Bank, argued the cause for respondents (Lomurro, Davison, Eastman & Munoz, attorneys).

Justice LONG delivered the opinion of the Court.

This choice-of-law case involves the question of whether New Jersey's charitable immunity statute, N.J.S.A. 2A:53A-7 to -11, applies to a tort committed in Pennsylvania. In 2003, a mentally disabled New Jersey resident was sexually abused at a summer camp located in Pennsylvania but operated by a New Jersey charity. Her parents sued the camp individually and on her behalf for negligent supervision at the campsite. The trial judge granted the camp's motion for summary judgment based on the doctrine of charitable immunity to which New Jersey adheres by statute. The Appellate Division reversed, declaring that Pennsylvania law governs the action because the commonwealth, which has abrogated charitable immunity and is the state in which the tortious conduct and injury occurred, has the greater governmental interest in the case. The camp filed a petition for certification that we granted.

Although we have traditionally denominated our conflicts approach as a flexible "governmental interest" analysis, we have continuously resorted to the Restatement (Second) of Conflict of Laws (1971) in resolving conflict disputes arising out of tort. See, e.g., Erny v. Estate of Merola, 171 N.J. 86, 95-96, 792 A.2d 1208 (2002); Fu v. Fu, 160 N.J. 108, 119-39, 733 A.2d 1133 (1999). That approach is the "most significant relationship" test. Under that standard, the analysis in a personal injury case begins with the section 146 presumption that the local law of the state of the injury will apply. Once the presumptively applicable law is identified, that choice is tested against the contacts detailed in section 145 and the general principles outlined in section 6 of the Second Restatement. If another state has a more significant relationship to the parties or issues, the presumption will be overcome. If not, it will govern.

Examining the facts of this case as they relate to the contacts and principles articulated in the Second Restatement, we conclude [456] that Pennsylvania, the state in which the charity chose to operate and which is the locus of the tortious conduct and injury, has at least as significant a relationship to the issues as New Jersey, and that the presumptive choice of Pennsylvania law therefore has not been overcome.

I.

Over thirty years ago, New Jersey Camp Jaycee, Inc. (Camp Jaycee) was organized as a not-for-profit corporation to operate a summer program for mentally challenged individuals.^[1] Although Camp Jaycee was incorporated in New Jersey and maintains an administrative office here, it has chosen to carry out its primary charitable mission in the Commonwealth of Pennsylvania at a campsite in the town of Effort.

In 2003, one of Camp Jaycee's campers was P.V., a twenty-one-year-old female from New Jersey with Down syndrome and mental and emotional handicaps. P.V. had attended the camp for at least three consecutive summers. According to the complaint, in August 2003, P.V. was sexually assaulted by another camper, as a result of which she sustained injuries requiring medical treatment.

P.V.'s parents, T.V. and L.V., as guardians ad litem and individually, instituted a personal injury action in New Jersey against Camp Jaycee and several fictitious defendants. They alleged that Camp Jaycee and its agents, servants, and employees were careless and negligent in the supervision of P.V. "at the camp" in Pennsylvania. Camp Jaycee filed a motion to dismiss, asserting immunity from suit under the New Jersey Charitable Immunity Act (CIA). N.J.S.A. 2A:53A-7 to -11.

The trial judge granted Camp Jaycee's motion for summary judgment on the ground that, under the CIA, the camp is immune from suit by a beneficiary. The Appellate Division reversed, declaring that the CIA is not the governing law of the case because Pennsylvania, the state of the wrongful conduct and injury, has abrogated charitable immunity and has a greater interest in regulating the conduct of entities operating within its borders than New Jersey has in immunizing not-for-profit corporations. P.V. v. Camp Jaycee, 393 N.J.Super. 19, 21-22, 922 A.2d 761 (App.Div.2007). In ruling, the Appellate Division relied in part on the exceptions that have been carved out of the CIA (e.g. the CIA does not immunize charities against actions for intentional conduct) as diluting New Jersey's interest. We granted Camp Jaycee's petition for certification, 192 N.J. 295, 927 A.2d 1293 (2007), and now affirm the judgment of the Appellate Division.

II.

Camp Jaycee argues that New Jersey has a transcendent interest in the application of its charitable immunity law because the camp was organized under the laws of New Jersey; both parties are domiciled in New Jersey; Pennsylvania has no interest in the post-event rights and liabilities of two New Jersey domiciliaries; Pennsylvania is merely "the happenstance of the situs of the accident"; and no Pennsylvania citizen was injured.

P.V. counters that Pennsylvania, the state in which Camp Jaycee chose to operate; in which the tortious conduct and injury occurred; and in which the relationship of the parties was centered, has at [457] least as great if not a greater interest than New Jersey in the resolution of this matter because of its concerns over conduct-regulation and redress to tort victims.

III.

The background of our present approach to conflict of laws is helpful to this analysis. Traditionally, our courts, like those of most jurisdictions, followed the bright-line rules embodied in the Restatement (First) of Conflict of Laws (1934). Those rules applied the law of the jurisdiction where a right was said to have "vested." William L. Reynolds, Legal Process and Choice of Law, 56 Md. L.Rev. 1371, 1376 (1997).

A tort right vested, for example, in the state where the injury occurred (rather than, say, where the wrongful conduct occurred); a contract right vested in the state where the last act necessary to make the contract took place (usually the acceptance), and so on. The system purported to solve all choice-of-law problems by isolating a key fact (such as where the plaintiff was injured); once the location of that fact is identified, the law to be applied follows ineluctably. On the surface, at least, the judge exercises no discretion; choosing applicable law is a routine, humdrum enterprise. [Ibid.]

Under that system, courts could choose between competing laws simply by applying concepts such as lex fori, lex loci, and lex contractus, without analyzing the content of the laws, the specific facts of a case, or the contacts the parties may have had with other states. That approach often resulted in the application of the law of a state with no real connection to the litigation and led to the downfall of the First Restatement. Id. at 1380-85.

During the 1950s, "legal realists" attacked the vested rights theory and countered that, in choosing between conflicting laws, courts should take into account the policies behind those laws and the facts of the cases that gave rise to the conflict. Id. at 1380 (citing Bruce Posnak, Choice of Law: Interest Analysis and Its "New Crits", 36 Am. J. Comp. L. 681, 682 (1988) (noting early criticisms of First Restatement)).

In 1967, we joined with other jurisdictions in abandoning the First Restatement approach to tort cases, embracing the modern governmental interest analysis, for which Professor Brainerd Currie is generally credited.^[2] See Mellk v. Sarahson, 49 N.J. 226, 234-35, 229 A.2d 625 (1967) (foregoing application of lex loci approach). The governmental interest test has traditionally been described as an approach by which courts seek to assess countervailing state laws through statutory construction and other interpretative mechanisms to determine whether the states' policies are aligned with either party in the litigation. Jeffrey M. Shaman, The Vicissitudes of Choice of Law: The Restatement (First, Second) and Interest Analysis, 45 Buff. L.Rev. 329, 349-50 (1997). See generally Brainerd Currie, Selected Essays on the Conflict of Laws 627 (1963). Under the governmental interest test, where an actual conflict exists, courts must "identify the governmental policies underlying the law of each state and how those policies are affected by each state's contacts to the litigation and the parties." Veazey v. Doremus, 103 N.J. 244, 248, 510 A.2d 1187 (1986).

Four years after our adoption of the governmental interest analysis, and seventeen [458] years after the reform effort had been undertaken, the Second Restatement was finalized. To a great extent, it embraced the "reasoned elaboration" school of judicial analysis that requires a thorough explanation of every judicial decision, tied closely to the facts of the case, and an articulation of why the decision is just. Reynolds, supra, 56 Md. L.Rev. at 1387 (quoting Henry Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 145-52 (William Eskridge, Jr. & Philip P. Frickey eds., 1994)). In place of black letter law, the Second Restatement contains presumptions and detailed considerations that bear on conflicts analyses. The philosophy underlying the Second Restatement has been described as follows:

to provide guidance for judges by reminding them of things to consider in making a choice-of-law decision. The judge then would weigh the factors in light of the facts and explain why she reached the particular result. The listed factors certainly do not control the decision; rather, they merely suggest items upon which the judges should reflect. In other words, the Second Restatement provides judges with a starting point: a set of presumptions and a list of concerns worth addressing. It is then up to the judge to make it all work. The judge has to choose which law to apply, not which theory. Indeed, theory has relatively little to do with decisionmaking under the Second Restatement.

[Id. at 1388.]

Section 6, which has been described as the "cornerstone of the entire Restatement," Eugene F. Scoles et al., Conflict of Laws § 2.14 (4th ed.2004), prescribes that

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(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 determination and application of the law to be applied.

[Restatement, supra, § 6.]

The Second Restatement also provides specific guidance for resolving particular types of cases. See, e.g., Restatement, supra, ch. 8 ("Contracts"). In connection with tort, section 145 of chapter 7 is entitled "The General Principle" and prescribes that: "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." Restatement, supra, § 145(1). The contacts that are weighed in making that assessment 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.

[459] [Restatement, supra, § 145(2)(a)-(d).]^[3]

Although the Second Restatement eschews the bright lines established by its predecessor, it does not abandon all rules:

Once one ventures past section 145, however, the chapter dramatically changes character. Instead of infinitely open-ended sections, the Second Restatement, for the most part, articulates reasonably definite rules. To be sure, these succeeding sections contain escape valves that refer to section 6. Many of the rules echo the First Restatement's preference for choosing the law of the injury state. Others do not refer to the injury state directly, but choose connecting factors very likely, if not certain, to lead to the application of the law of the injury state. . . . Only a relatively few sections refer solely to the general formula of section 145 without providing some presumptive choice.

[Patrick J. Borchers, Courts and the Second Conflicts Restatement: Some Observations and an Empirical Note, 56 Md. L.Rev. 1232, 1239-40 (1997) (footnotes omitted).]

In a personal injury case, the relevant presumption is contained in section 146, which provides:

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.

[Restatement, supra, § 146.]

As is evident, a pure governmental interest analysis is distinct from the Second Restatement approach. In the former, the strength of the countervailing governmental interests is dispositive. The latter

does not focus solely on the state interests; instead, it directs courts to apply the law of the jurisdiction with "the most significant relationship" to the issue before the court. In making this determination, the court is required to consider all of the contacts that each jurisdiction has with the issue.

[Earl M. Maltz, Do Modern Theories of Conflict of Laws Work? The New Jersey Experience, 36 Rutgers L.J. 527, 530 (2005) (footnotes omitted).]

In other words, "rather than the Second Restatement being intended to provide a metric for determining the strength of state interests, the respective strength of the states' interests is a factor to be considered in measuring the significance of the contacts of the relevant states." Id. at 546.^[4]

Following the promulgation of the Second Restatement, we again modified our analysis, using the Second Restatement framework as our methodology in Fu, supra, [460] 160 N.J. at 119-39, 733 A.2d 1133. Indeed, although dissenting on the merits, Justice Pollock explicitly declared what the majority had implicitly acknowledged by resorting to the Second Restatement: "New Jersey's governmental-interest test is substantially similar to the most-significant-relationship test adopted by the American Law Institute in Restatement (Second) of Conflict of Laws (the `Restatement') (1971). Thus, New Jersey now adheres to the method of analysis set forth in Restatement sections 6 (Section 6) and 145 (Section 145)." 160 N.J. at 144, 733 A.2d 1133 (Pollock, J., dissenting).

More recently, in Erny, supra, this Court specifically cited the presumption in section 146 and also identified and applied the section 145 contacts and section 6 principles to resolve a choice-of-law issue. 171 N.J. at 95-97, 792 A.2d 1208. Although continuing to denominate our standard as a kind of governmental interest test, we now apply the Second Restatement's most significant relationship standard in tort cases. Under that standard, the law of the state of the injury is applicable unless another state has a more significant relationship to the parties and issues.

The Second Restatement assessment takes place on an issue-by-issue basis. Id. at 95, 792 A.2d 1208. It is qualitative, not quantitative. Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 32 (3d Cir.1975). In other words, the inquiry does not focus solely on the number of contacts with each state, although that can be persuasive. We also look to the principles in section 6 to measure the significance of the contacts in order to determine whether the presumption has been overcome. Viewed through the section 6 prism, the state with the strongest section 145 contacts will have the most significant relationship to the parties or issues, and thus its law will be applied.

IV.

Procedurally, the first step is to determine whether an actual conflict exists. That is done by examining the substance of the potentially applicable laws to determine whether "`there is a distinction'" between them. Lebegern v. Forman, 471 F.3d 424, 430 (3d Cir.2006) (quoting Grossman v. Club Med Sales, Inc., 273 N.J.Super. 42, 49, 640 A.2d 1194 (App.Div. 1994)). If not, there is no choice-of-law issue to be resolved. Rowe v. Hoffman-La Roche, Inc., 189 N.J. 615, 621, 917 A.2d 767 (2007); Gantes v. Kason Corp., 145 N.J. 478, 484, 679 A.2d 106 (1996).

Here, it is clear, as the parties have conceded, that an actual conflict exists between the laws of Pennsylvania and New Jersey. By enacting the CIA, the New Jersey Legislature has carved charitable corporations out of its tort law system and declared them to be free from most tort liability. That statute provides:

No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants, or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association. . . .

[N.J.S.A. 2A:53A-7(a).]

Contrary to New Jersey's policy of immunization, Pennsylvania has definitively abrogated its charitable immunity laws and has chosen to subject charitable corporations to the same tort liability as all [461] others. Flagiello v. Pa. Hosp., 417 Pa. 486, 208 A.2d 193, 207-08 (1965). Essentially then, the conflicting laws of New Jersey and Pennsylvania are two sides of the same coin—basically comprehending polar opposite positions regarding immunity from tort liability. If New Jersey law applies, the case will be dismissed. If Pennsylvania law applies, it will proceed. Because there is an evident conflict, we turn to the Restatement analysis.

V.

Once a conflict is established, our point of departure is section 146, which, in this matter, presumes that Pennsylvania law (the local law of the state where the injury occurred) will govern the rights and liabilities of the parties. See Erny, supra, 171 N.J. at 95, 792 A.2d 1208 (commencing analysis from section 146 presumption). In that respect, Camp Jaycee makes a fundamental misstep in its analysis by misconceiving our turn away from the black letter law of lex loci as rendering the place of injury of little importance. Nothing could be further from the truth, as the presumption in section 146 underscores. Indeed, "the simple old rules can be glimpsed through modernity's fog, though spectrally thinned to presumptions." Spinozzi v. ITT Sheraton Corp., 174 F.3d 842, 844 (7th Cir.1999).

Section 146 recognizes the intuitively correct principle that the state in which the injury occurs is likely to have the predominant, if not exclusive, relationship to the parties and issues in the litigation. Restatement, supra, § 146 comment d. It is from that vantage point that we turn to the remaining contacts set forth in sections 145 and the cornerstone principles of section 6 to determine whether New Jersey has "a more significant relationship . . . [with] the occurrence and the parties" than Pennsylvania. Restatement, supra, § 146. Only such a finding would overcome the presumptive rule of section 146.^[5]

VI.

Under section 145, the first contact is the place where the injury occurred— Pennsylvania, Although Camp Jaycee characterizes the place of injury as Pennsylvania's only contact with the case, nothing could be further from the truth. Indeed, the second section 145 contact is the place where the conduct causing the injury occurred—that also is Pennsylvania. Despite our dissenting colleagues' contrary suggestion, the only allegation of negligence in the complaint is negligent supervision at the Pennsylvania campsite. In that respect,

[462] [w]hen both conduct and injury occur in a single jurisdiction, with only "rare exceptions, the local law of the state where conduct and injury occurred will be applied" to determine an actor's liability. That is so because "a state has an obvious interest in regulating the conduct of persons within its territory and in providing redress for injuries that occurred there." The place of injury becomes less important when it is simply fortuitous.

[Fu, supra, 160 N.J. at 125-26, 733 A.2d 1133 (quoting Restatement, supra, § 145 comment d) (internal citations omitted).]

The place of the injury is fortuitous when "it bears little relation to the occurrence and the parties with respect to the particular issue." Restatement, supra, § 145 comment e (citing Restatement, supra, § 146 comments d-e). Here, the happening of the tortious conduct and injury in Pennsylvania was not a fortuity, as Camp Jaycee contends—Pennsylvania was the only location in which Camp Jaycee operated its camp for mentally disabled persons. It was a permanent fixture in that location. P.V. resided in Pennsylvania for at least three summers under the control of the camp. From that standpoint, Pennsylvania was not an unanticipated detour on the way to another location; it was the final destination. See Fu, supra, 160 N.J. at 137, 733 A.2d 1133 (citing Reale v. Herco, Inc., 183 A.D.2d 163, 589 N.Y.S.2d 502, 508 (1992) (noting infant plaintiff's decision to vacation at Hershey Park had direct and substantial nexus with Pennsylvania)).

The third contact is "the domicil, residence, nationality, place of incorporation and place of business of the parties." Restatement, supra, § 145(2)(c). To be sure, P.V. is a New Jersey domiciliary, and Camp Jaycee is a New Jersey not-for-profit corporation. However, P.V. chose to attend the camp in Pennsylvania. Moreover, as the Second Restatement underscores, the use of the term "domiciliary" when referring to corporations is imprecise. See id. § 145 comment e. Courts should focus not only on an entity's place of incorporation but also on its principal place of business. Ibid. Indeed, in balancing those two epicenters, "[a]t least with respect to most issues, a corporation's principal place of business is a more important contact than the place of incorporation, and this is particularly true in situations where the corporation does little, or no, business in the latter place." Ibid.

In this case, Camp Jaycee was incorporated for the primary purpose of running a camp for mentally disabled children and adults. As far as this record reveals, Camp Jaycee has chosen to perform that function solely in Effort, Pennsylvania, and, although it does maintain an administrative office in New Jersey, the principal place of the business for which it was incorporated is Pennsylvania.

The final section 145 contact is the place where the relationship between the parties is centered. Even if P.V. signed on as a camper through Camp Jaycee's administrative office in New Jersey (and the record is silent on that issue), it is of little consequence because this is not a contracts case. Rather, it is a tort action and, from that perspective, there is no question that P.V.'s relationship with Camp Jaycee was centered on her camp experience in Effort, Pennsylvania.

In sum, on one side of the contacts ledger, P.V. and Camp Jaycee are co-domiciliaries of New Jersey. On the other side of the ledger, Camp Jaycee chose to perform the sole charitable function for which it was organized in Pennsylvania; P.V. chose to attend a camp in Pennsylvania; the relationship between P.V. and Camp Jaycee was centered on the camp experience [463] in Pennsylvania; the tortious conduct (negligent supervision) took place solely in Pennsylvania; and P.V. was injured in Pennsylvania.

Standing alone, New Jersey's contacts are certainly no greater than those of Pennsylvania. However, because our analysis is not merely quantitative, we also look to the principles of section 6 to measure the significance of those contacts. In other words, do the section 6 considerations gin up or diminish the values to be ascribed to the contacts relative to the issue presented?

VII.

Reduced to their essence, the section 6 principles are: "(1) the interests of interstate comity; (2) the interests of the parties; (3) the interests underlying the field of tort law; (4) the interests of judicial administration; and (5) the competing interests of the states." Erny, supra, 171 N.J. at 101-02, 792 A.2d 1208 (quoting Fu, supra, 160 N.J. at 122, 733 A.2d 1133).

A.

The competing interests of the states and relevant tort law principles overlap in this case. Both Pennsylvania and New Jersey have established tort law systems intended to compensate tort victims and deter wrong-doing. However, from that scheme, New Jersey has carved out charitable corporations and declared them to be free from most tort liability. The Legislature has determined that the proper way to encourage charity in New Jersey and to guarantee continuance of the good works charities provide is to insure they will not have to expend their resources on litigation. "[T]he essence of the public policy favoring charitable immunity is the preservation of private charitable contributions for their designated purposes." Bieker v. Cmty. House of Moorestown, 169 N.J. 167, 178, 777 A.2d 37 (2001) (quoting Parker v. St. Stephen's Urban Dev. Corp., Inc., 243 N.J.Super. 317, 326, 579 A.2d 360 (App.Div.1990)).

As previous rulings have declared, New Jersey's public policy in enacting the CIA is "strong" and is to be "considered remedial and be liberally construed." Monaghan v. Holy Trinity Church, 275 N.J.Super. 594, 598, 646 A.2d 1130 (App.Div.1994). Although there are exceptions to the immunity provided,^[6] those exceptions do not, in any measure, water down the importance of the policy to our state, and to the extent that the Appellate Division suggested otherwise, it was wide of the mark. In any event, our focus is not on the importance of the policy to the state but on the relationship between the policy and the contacts.

Pennsylvania, on the other hand, has explicitly rejected the policy of charitable immunity. Flagiello, supra, 208 A.2d at 207-08. It is the characterization of Pennsylvania's policy that is at issue in this case. Camp Jaycee denominates Pennsylvania's abrogation of charitable immunity as nothing more than a post-event loss-allocation construct, which it argues renders the conduct-related contacts in Pennsylvania essentially irrelevant. In framing the issue that way, Camp Jaycee suggests that Pennsylvania's interest will not be impaired if we apply New Jersey law to bar the suit of a New Jersey citizen.

[464] It is not surprising that, in support of that view, Camp Jaycee has relied on the decision in Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985). There, two members of a New Jersey Boy Scout troop were sexually abused by their scoutmaster on an outing in New York. Id. 491 N.Y.S.2d 90, 480 N.E.2d at 681. Their parents sued in New York, and the Court of Appeals of New York held the suit barred by the New Jersey doctrine of charitable immunity to which New York does not subscribe. Ibid. In ruling, the Court characterized New York's abrogation of charitable immunity as a loss-allocation measure. Id. 491 N.Y.S.2d 90, 480 N.E.2d at 686. It concluded that New York, the place of the conduct and injury, had no true interest in the outcome because the victims and defendant were New Jersey residents, thus making New Jersey the state with the preeminent interest— immunity. Id. 491 N.Y.S.2d 90, 480 N.E.2d at 688-89.

The dissenting judge disagreed with that characterization:

There can be no question that this State has a paramount interest in preventing and protecting against injurious misconduct within its borders. This interest is particularly vital and compelling where, as here, the tortious misconduct involves sexual abuse and exploitation of children, regardless of the residency of the victims and the tort-feasors. (See, New York v. Ferber, 458 U.S. 747, 756-60, 102 S.Ct. 3348, 3354-3356, 73 L.Ed.2d 1113, on remand 57 N.Y.2d 256, 455 N.Y.S.2d 582, 441 N.E.2d 1100.) Despite the majority's denial, New York's law in question is intimately connected to this overriding interest.

. . . .

Indeed, this deterrence function of tort law, whether it be in the form of imposing liability or denying immunity, is a substantial interest of the locus state which is almost universally acknowledged by both commentators and the courts to be prominent factor deserving significant consideration in the resolution of conflicts problems.

[Schultz, supra, 491 N.Y.S.2d 90, 480 N.E.2d at 691-92.]^[7]

That is our conclusion as well. The proper characterization of Pennsylvania's policy is that it is a measure limned for the purpose of "prevent[ion], protect[ion] and compensat[ion]." Id. 491 N.Y.S.2d 90, 480 N.E.2d at 691. Indeed, when a state decides to abrogate its charitable immunity law, it typically does so with the intention of insuring due care: "[I]t both assures payment of an obligation to the person injured and gives warning that justice and the law demand the exercise of care." Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3, 8 (1957). In Flagiello, the Pennsylvania Supreme Court used strong language to describe its conduct-regulating interest in abolishing charitable immunity:

Human nature being what it is, administrators of a hospital, cognizant that the hospital is insulated from tort liability, [465] may be less likely to exercise maximum scrutiny in selecting personnel than if the hospital were held monetarily liable for slipshod, indifferent, and neglectful conduct of employees. As Justice Rutledge said in the Georgetown case, [President and Directors of Georgetown College v. Hughes, 130 F.2d 810, 824 (D.C.Cir.1942),] "immunity tends to foster neglect while liability tends to induce care and caution."

[Flagiello, supra, 208 A.2d at 202; see also Molitor v. Kaneland Cmty. Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 95 (1959) ("[W]e believe that abolition of such immunity may tend to decrease the frequency of school bus accidents. . . ."), superseded by statute, 745 ILCS 10/1-101 to 10-101, as recognized in Harrison v. Hardin County Cmty. Unit Sch. Dist. No. 1, 197 Ill.2d 466, 259 Ill.Dec. 440, 758 N.E.2d 848, 851 (2001); Silva v. Providence Hosp. of Oakland, 14 Cal.2d 762, 97 P.2d 798, 802, 805 (1939) (holding a nonprofit hospital liable to an injured party because "[California] should not be added to the list of those whose courts have encouraged—as in some degree they surely have—the agents of charitable institutions to render less than due care for the security of life, limb, and property, the very things which it is the sole purpose of such institutions to preserve and protect.").]

Our dissenting colleagues' suggestion that the heart of Flagiello was the transformation of hospitals into "big business" and the protection of Pennsylvania residents says too little. Post at 173-74, 962 A.2d at 478-79. Flagiello devoted equal, if not more, attention to the notion that every wrong has a remedy and the paradoxical and unjust results generally produced by the charitable immunity doctrine. Id. at 195, 197, 203, 204-05.

Moreover, the Pennsylvania Supreme Court has since extended Flagiello to include torts occurring to non-paying patients in hospitals, Siewicz v. Wyo. Valley Hosp., 417 Pa. 533, 208 A.2d 238, 238 (1965), and torts on property owned by religious organizations, Nolan v. Tifereth Israel Synagogue of Mount Carmel, Pa. Inc., 425 Pa. 106, 227 A.2d 675, 676-77 (1967).

Additionally, in its ruling, the court in Flagiello never referred specifically to Pennsylvania residents but to patients generally. 208 A.2d at 195, 197, 203, 204-05. In fact, the court approvingly quoted Judge Fuld's prophetic statement in Bing that

[i]t is not too much to expect that those who serve and minister to members of the public should do so, as do all others, subject to that principle and within the obligation not to injure through carelessness. It is not alone good morals but sound law that individuals and organizations should be just before they are generous.

[Bing, supra, 163 N.Y.S.2d 3, 143 N.E.2d at 8.]

Essentially then, there are two conflicting policies at issue here—New Jersey's post-event loss-allocation policy and Pennsylvania's conduct-regulation and redress policy. The question is how those policies relate to the relevant contacts.

We conclude that, in the main, the policies are aligned with Pennsylvania's contacts. As we previously stated, the fact that the conduct and injury occurred in Pennsylvania was not fortuitous. Camp Jaycee has a continuous and deliberate presence in Pennsylvania. The camp is tasked with the responsibility of supervising and caring for mentally disabled campers for extended periods of time within the commonwealth. It is that perennial presence and activity in Pennsylvania that is [466] inextricably intertwined with Pennsylvania's interest in conduct-regulation. If Pennsylvania's tort law is to have any deterrent impact and protect other campers from the type of harm inflicted upon P.V., it must be applied in situations where tort-feasors repeatedly perform their tasks within the state, regardless of the home state of the campers. Indeed, there is no way for a state to "make its territory safe for residents without making it safe for visitors too. If it is unsafe for visitors it is unsafe for residents." Louise Weinberg, Against Comity, 80 Geo. L.J. 53, 89 (1991).^[8]

Concededly, New Jersey's interest in protecting its charitable corporations is aligned with the parties' co-domiciliary status in this state. However, where, as here, the plaintiff chooses to attend camp and the corporation opts to perform its primary charitable acts outside the state, the strength of that contact is diluted. Indeed, immunity laws are designed to encourage persons to engage in the particular conduct within the state. Where defendant's conduct takes place in another state, the immunity goals are diminished. Restatement, supra, § 146 comment e.

B.

The interest of interstate comity seeks to "further harmonious relations between the states and to facilitate commercial intercourse between them." Restatement, supra, § 6 comment d. It considers "whether application of a competing state's law would frustrate the policies of other interested states." Fu, supra, 160 N.J. at 122, 733 A.2d 1133. Affording immunity for the negligence committed by Camp Jaycee in Pennsylvania would significantly frustrate Pennsylvania's purpose in deterring tortious conduct within the commonwealth. Cf. id. at 137, 733 A.2d 1133 ("New York `has an obvious interest in regulating the conduct of persons within its territory and in providing redress for injuries that occurred there.'") (citation omitted); see also Erny, supra, 171 N.J. at 108, 792 A.2d 1208 (applying New York law "[b]ecause the policy underlying New Jersey's law is not thwarted by application of New York . . . law to this case, and because the compensation and deterrence policies underlying New York's law are advanced.").

Although we have departed from the rigid application of the lexi loci approach, we have continuously deferred to the rights of other jurisdictions to regulate conduct within their borders. That is particularly so when the conduct is ongoing and directed towards residents and non-residents alike.

New Jersey can continue to protect charities operating in this state even if the law of Pennsylvania is applied to the Pennsylvania activities in this case. The converse is not true. If New Jersey's immunity law is applied, Pennsylvania's ability to regulate the conduct of those who chose to operate within its borders will be substantially impaired. See, e.g., Mellk, supra, 49 N.J. at 230, 229 A.2d 625 ("In the present case the State of Ohio has a real interest in having its rules of the road apply to the conduct of the parties in the operating of a motor vehicle on the highways of that state. Under principles of comity the courts of New Jersey will recognize and follow the Ohio laws relating to [467] traffic safety."); Fu, supra, 160 N.J. at 129, 733 A.2d 1133 (citing Bray v. Cox, 39 A.D.2d 299, 333 N.Y.S.2d 783, 785-86 (1972)) (applying New York's law despite both parties being domiciled in New Jersey in recognition that "New York has strong governmental interests in applying Section 388 to an accident within its borders even when none of the parties is a New York resident").

C.

In respect of the parties' expectations, Camp Jaycee argues that the parties' co-domiciliary status in New Jersey gave it a reasonable belief that it would be immune under the CIA and that P.V. should have been aware of that immunity. In other words, it organized in New Jersey so it would not have to respond in tort for its wrongful actions toward beneficiaries, and P.V. understood that protection. That view overlooks the reality of this case: Camp Jaycee operates its camp in Pennsylvania; P.V. chose to attend the camp in Pennsylvania; there is nothing in the camp's certificate of incorporation to suggest that it is limited to New Jersey residents; P.V. was sexually assaulted at the camp in Pennsylvania; and this lawsuit alleges carelessness and negligence at the camp. In Fu, supra, we dismissed the notion that a corporation could reasonably expect automatic immunization when conducting affairs outside the state: "[H]owever reasonable may be a rental agency's reliance on New Jersey's vicarious liability laws for purposes of an accident in this State, any blanket reliance on this State's law as a defense to conduct occurring in a foreign jurisdiction could not be justified." 160 N.J. at 135, 733 A.2d 1133. Thus, although the parties legitimately might have expected that Camp Jaycee's activities in New Jersey were immune under the CIA, they should not have expected it to carry that immunity into another state.

D.

The interests of judicial administration require courts to consider issues such as practicality and ease of application, factors that in turn further the values of uniformity and predictability. Erny, supra, 171 N.J. at 102, 792 A.2d 1208; Fu, supra, 160 N.J. at 124, 733 A.2d 1133. As the Second Restatement points out, the section 146 presumption in favor of the law of the state of the injury, in itself, "furthers the choice-of-law values of certainty, predictability and uniformity of result and, since the state where the injury occurred will usually be readily ascertainable, of ease in the determination and application of the applicable law." Restatement, supra, § 146 comment c. Moreover, where, as here, the contacts and principles of the Second Restatement lead inexorably to the conclusion that a particular state's relationship to the parties and issues is predominant, judicial administration considerations necessarily yield. Erny, supra, 171 N.J. at 102, 792 A.2d 1208 (citing Fu, supra, 160 N.J. at 124, 733 A.2d 1133). See generally Symeon C. Symeonides, The Need for a Third Conflicts Restatement (And a Proposal for Tort Conflicts), 75 Ind. L.J. 437, 462 (2000) (recognizing ease-of-application consideration must yield to judicious results in fact-patterns analogous to present case).

VIII.

In sum, in balancing the relevant elements of the most significant relationship test, we seek to apply the law of the state that has the strongest connection to the case. As we have said, in a personal injury action, the analysis begins with section 146 of the Second Restatement, which presumes that the local law of the state of injury will be applied. If the presumptive [468] rule points to a specific jurisdiction, the court will look to the remaining contacts in section 145 and the principles embodied in section 6 of the Restatement to determine whether another state has a more significant relationship to the parties or issues. In that case, the presumption will be overcome; otherwise, the presumption will govern.

Here, under section 146, the law of Pennsylvania is presumptively applicable because it is the state of injury. In addition, it is the state in which P.V. chose to attend camp; in which Camp Jaycee chose to carry out its charitable function; in which the tortious conduct occurred; and in which the parties' relationship was centered. On the other side of the contacts ledger, P.V. and Camp Jaycee are New Jersey domiciliaries. Thus, both jurisdictions bear a relationship to the case.

On a purely quantitative level, Pennsylvania's contacts substantially outweigh those of New Jersey, suggesting that it is the state with the most significant relationship to the parties and issue. Nevertheless, we have looked to section 6 to determine whether more or less weight should be ascribed to those contacts, thus altering the balance and warranting an override of the section 146 presumption.

Our conclusion is that the presumption has not been overcome. Although both states have strong countervailing policies regarding immunity, Pennsylvania's policy of conduct-regulation and recompense is deeply intertwined with the various Pennsylvania contacts in the case. On the contrary, New Jersey's loss-allocation policy does not warrant the assignment of priority to the parties' domicile in New Jersey in connection with activities outside the state's borders.

The comity considerations likewise favor the Pennsylvania contacts because the application of Pennsylvania law would not thwart New Jersey's interest in protecting charitable activities in this state, whereas the application of New Jersey law would necessarily subvert Pennsylvania's interest in deterrence and recompense. Further, the parties could not have expected New Jersey immunity to apply to the camp's out-of-state activities. Finally, no judicial administration interest is implicated here.

In short, neither the contacts themselves nor the section 6 considerations support the conclusion that New Jersey has a more significant relationship to the case than Pennsylvania. In fact, the converse is true. Although we recognize the vitality of our own policy of immunizing charities, in this case, it must yield to the presumption favoring application of Pennsylvania law, which has not been overcome.

IX.

The judgment of the Appellate Division is affirmed. The case is remanded to the trial judge for further proceedings consistent with the principles to which we have adverted.

Justice HOENS, dissenting.

Today, a majority of this Court has chosen to adopt a new framework for deciding conflict of law disputes. Although stating that there is nothing novel in its approach, and although supporting that assertion with citations to parts of this Court's prior opinions (both majorities and dissents) as proof that this Court has long used the analytical model embodied in the Restatement (Second) of Conflict of Laws (1971), in reality, the majority has substituted that test for our traditional one. At the same time, the majority has tossed aside our far more nuanced "governmental interest" approach, in which the factors identified by the Restatement (Second) were but an occasionally useful guide, and [469] embraced in its place the Restatement (Second)'s "most-significant-relationship" test.

In doing so, the majority ignores the important differences between the two approaches, overlooks the essential focus of our traditional test, and misapplies the factors embodied in the Restatement (Second). At the same time, the majority has selected a test that has been criticized, by some of the same authorities^[9] that the majority cites for its separate purposes, as results oriented.

More to the point, in the process of adopting a new test more or less sub silentio, the majority ignores the remarkably strong interest that our Legislature has expressed about charitable immunity and substitutes the alternate view of a court in Pennsylvania that mirrors the approach this Court long ago attempted to embrace as more "enlightened." Sadly, when the facts and issues are analyzed by weighing the competing interests of the two states in accordance with our traditional governmental interest approach, or even in accordance with that approach as informed by the Restatement (Second), this plainly sympathetic plaintiff has no avenue for relief. In adopting a new test, and in applying a test that provides a mechanism for relief, however, the majority creates consequences here in our State which our Legislature has repeatedly sought to prevent.

Because I cannot join in what I see as a majority of the Court substituting its view of an appropriate public policy for the public policy choice explicitly announced by our Legislature, I respectfully dissent.

I.

The majority traces the history of choice of law principles with a focus on its development in terms largely external to our own jurisprudence. To be sure, our method of analysis has not evolved in a vacuum. Instead, our analytical framework has changed both in tandem with and, at times, in stark divergence from, the path forged by the academics who seek to shape our thinking. There is no need to retrace the entirety of the development of this body of law either here in New Jersey or as it has been described in the scholarly literature. There is, however, a need to make plain the differences between our traditional analysis and the test set forth by the majority.

We abandoned the simplistic lex locus analysis of the first Restatement of Conflict of Laws,^[10] in favor of the more flexible governmental interest analysis because the "place of the wrong" test often led to harsh and unacceptable results. See Veazey v. Doremus, 103 N.J. 244, 247, 510 A.2d [470] 1187 (1986) (citing Mellk v. Sarahson, 49 N.J. 226, 228-29, 229 A.2d 625 (1967)). We therefore elected to abandon a rule that provided certainty, uniformity, and predictability, in favor of one that, in spite of its complexities, we were confident would be both fair to all of the litigants and faithful to the public policy of this State. Ibid.

The governmental interest analysis contemplates a two-step approach. In its traditional articulation, the court first determines whether there is a conflict between the laws of the various jurisdictions that have an interest in the matter. If a conflict of laws is found, the court then "identif[ies] the governmental policies underlying the law of each state" and determines "how those policies [were] affected by each state's contacts to the litigation and to the parties." Veazey, supra, 103 N.J. at 248, 510 A.2d 1187. After engaging in these two steps, the court must then "apply the law of the state with the greatest interest in governing the specific issue in the underlying litigation." Fu v. Fu, 160 N.J. 108, 118, 733 A.2d 1133 (1999). That is, if an actual conflict exists, the second step "seeks to determine the interest that each state has in resolving the specific issue in dispute." Gantes v. Kason Corp., 145 N.J. 478, 485, 679 A.2d 106 (1996). That requires the court to identify the governmental policies underlying the law of each state and determine whether "those policies are affected by each state's contacts to the litigation and to the parties." Veazey, supra, 103 N.J. at 248, 510 A.2d 1187; see Rowe v. Hoffman-La Roche, 189 N.J. 615, 621-22, 917 A.2d 767 (2007).

In 1999, however, we were confronted with the need to balance the "well articulated" public policy underlying a New York statute against the difficult to discern public policy bases for the common law pronouncements of this State's courts. See Fu, supra, 160 N.J. at 117, 733 A.2d 1133. It was only in that context that we turned to the factors set forth in the Restatement (Second), resorting to them only because they were helpful in identifying the relevant public policies and interests and, therefore, useful in performing our governmental interest analysis. Id. at 119-35, 733 A.2d 1133. In particular, we looked to a variety of factors drawn from sections 6 and 145 of the Restatement (Second), describing those factors as "guides." Id. at 119, 733 A.2d 1133.

Similarly, in Erny v. Merola, 171 N.J. 86, 792 A.2d 1208 (2002), we found the Restatement (Second) factors to be a useful tool. There we considered conflicting statutes of this State and New York, which included clear expressions of policy, but did not on initial review lend themselves to the proper application of the governmental interest analysis. We therefore turned again to the Restatement (Second) factors, concluding that they were helpful in identifying the interests that the application of each statute would serve. Erny, supra, 171 N.J. at 94, 792 A.2d 1208. Neither in Fu nor in Erny did we abandon the governmental interest analysis in favor of a wholesale embrace of the Restatement (Second) test. Indeed, suggesting, as the majority does, see ante at 142-43, 962 A.2d at 460, that in Erny we applied only the Restatement (Second) test is simply inaccurate; the governmental interest analysis pervades that opinion and fully supports its conclusion. That we have not abandoned the governmental interest analysis for the Restatement (Second) framework could not be plainer than a cursory reading of Rowe, our most recent choice of law decision. Although that decision is largely overlooked by the majority, we there found resort to the guidance afforded by the Restatement (Second) to be unnecessary. See Rowe, supra, 189 N.J. at 622, 917 A.2d 767.

[471] Nor is the governmental interest test the same kind of an inquiry as the most significant relationship test. Merely putting the names of the two tests side by side makes it plain that they are not the same, but have a different focus entirely. Indeed, the latter, with its focus on contacts with each state, often devolves into a curious throwback to lex locus, a shortcoming that is abundantly apparent from its application in this case. In contrast, the governmental interest approach looks at contacts with each state, but also seeks to evaluate the policies that underlie the law of each state and to weigh how the application of that law will advance or frustrate the policy choices that each has made.

That is not to imply that the Restatement (Second) factors are irrelevant or that they are, when applied as a separate analytical framework, inadequate. In actuality, the majority has overlooked both the way in which this Court has, since Fu, appropriately utilized those factors and the manner in which the correct application of the Restatement (Second) test would support a result entirely consistent with our traditional governmental interest methodology.

As this Court has explained, the most important factor in deciding a conflict of laws issue is the evaluation of the competing interests of the states. In undertaking this part of our analysis, we examine the policies the Legislature "intended to protect by having [its] law apply to wholly domestic concerns" and then determine "whether those concerns will be furthered by applying that law to the multi-state situation." Fu, supra, 160 N.J. at 125, 733 A.2d 1133 (quoting Pfizer, Inc. v. Employers Ins. of Wausau, 154 N.J. 187, 198, 712 A.2d 634 (1998)). That is to say, once the court has identified the policies that underlie each state's law, it must then consider the effect that applying the law of each state to the particular litigation would have on the policies of each of those states.

As we commented recently:

[I]f a particular policy is designed to enhance a specific group and that group is neither a party to nor potentially affected by the litigation, then that state's interest is not aligned with its policy and it would be unlikely that that state would have the strongest governmental interest in deciding the issue.

[Rowe, supra, 189 N.J. at 623, 917 A.2d 767 (citing White v. Smith, 398 F.Supp. 130, 134 (D.N.J.1975)).]

Conversely, however, if a policy is designed for the protection of a particular group and that group will be affected by the litigation, then that state's interest in applying its policy will be strong.

Our approach to conflict of laws has therefore evolved beyond the long-abandoned lex locus test in which only the place of the wrong was considered. That, however, is not to say that the place of the wrong is irrelevant to our analysis, for as we have recognized previously, the location of a tort is often of particular importance. Indeed, both in Fu and again in Erny, this Court specifically pointed to the importance of a confluence between the place of the wrong and of the injury. In each case, we noted that, if both conduct and injury occur in the same state, the local law of that state will be applied with "rare exceptions," Fu, supra, 160 N.J. at 125-26, 733 A.2d 1133, or except in "rare instances," Erny, supra, 171 N.J. at 103, 792 A.2d 1208.

In each of those decisions, that expression about the importance of the place where conduct and injury occurred was indeed derived from the analysis of the Restatement (Second) factors; in neither of those decisions, however, did the inquiry end there. Instead, in both, the Court engaged in the far more complex, nuanced [472] evaluation of governmental interests, counting the interest of the jurisdiction where conduct and injury coincide as one, albeit an important one, of those factors. See Erny, supra, 171 N.J. at 103, 792 A.2d 1208; Fu, supra, 160 N.J. at 125-26, 733 A.2d 1133. More to the point, we have been willing to reject the law of the locus of the injury if a strong interest of the competing jurisdiction dictates otherwise. See Veazey, supra, 103 N.J. at 248-51, 510 A.2d 1187 (applying Florida law to Florida domiciliaries who were injured in automobile accident in New Jersey).

Far, therefore, from the majority's assertion that we have long used the Restatement (Second) test, we have merely used the factors and theories embodied in that test to "inform" our application of our governmental interest test. Nor is it accurate to suggest that the Restatement (Second)'s factors are devoid of the recognition that the states whose laws might be applied to any dispute have interests to be evaluated and policies to be considered in what is essentially a weighing process. The guiding principles of the Restatement (Second) themselves require analysis of the "policies" of the states, see, e.g., § 6(2)(b) ("the relevant policies of the forum"); § 6(2)(c) ("the relevant policies of other interested states"); § 6(2)(e) ("the basic policies underlying the particular field of law"). In focusing narrowly on section 145, expressing the general principles for torts, and section 146, expressing factors relevant to personal injuries, the majority does not grapple with the directive that all of those factor's be evaluated through the prism of the policies expressed by each state. Even section 146, with its apparently narrow reference to place of injury and conduct, demands a broader focus by requiring resort to a section 6 analysis to determine whether "some other state has a more significant relationship." Restatement (Second) § 146 (1971).

In the end, I part with the majority because this matter requires the Court to follow no different path than the governmental interest analysis that we have traditionally utilized. Fundamental to that approach, indeed, central to applying the factors identified by the Restatement (Second), is an analysis and a comparison of the public policies that give rise to the laws of the two jurisdictions that are in conflict. The underlying public policies that have led to the abolition of charitable immunity in Pennsylvania are plain in the decision of its highest court; the policies that have fueled its continued viability here are equally plain in the legislative history of our statute. We need look no further than those sources to inform our decision.

II.

Application of the governmental interest analysis requires a court to consider the policies that support the two different doctrines relating to charitable immunity that are in place in this State and in Pennsylvania.

A.

The inquiry must begin with the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53-7 to -11, and the public policy behind that Act. The doctrine of charitable immunity found its earliest expression in New Jersey in a 1925 decision of the Court of Errors and Appeals, see D'Amato v. Orange Mem'l Hosp., 101 N.J.L. 61, 127 A. 340 (E. & A.1925), applying a public policy rationale derived from the common law. Id. at 64-65, 127 A. 340. In 1958, however, this Court rejected the doctrine in a trio of decisions in which plaintiffs sought to pursue negligence actions against three separate kinds of charities. See Benton v. Young Men's Christian [473] Ass'n, 27 N.J. 67, 69, 141 A.2d 298 (1958) (rejecting charitable immunity for YMCA branch); Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 47-48, 141 A.2d 276 (1958) (rejecting charitable immunity for hospital on public policy grounds); Dalton v. St. Luke's Catholic Church, 27 N.J. 22, 24-25, 141 A.2d 273 (1958) (rejecting charitable immunity for church, based on reasons expressed in Collopy).

In particular, in Collopy, a case in which the plaintiff had been injured while he was a hospital patient, the Court listed its reasons for abrogating the doctrine of charitable immunity. Principally, the Court explained that the doctrine was merely a judicially-created one, see Collopy, supra, 27 N.J. at 31, 141 A.2d 276; that it had been eroded over time through court-sanctioned exceptions, id. at 31-32, 141 A.2d 276; that it had little historical basis as compared to other common law tort duties, id. at 32, 141 A.2d 276; that it had been increasingly criticized by courts of other states for its "lack of current utility or justification," id. at 33, 141 A.2d 276; and that it had engendered "overwhelming[]" opposition in the "[p]rofessorial and student writings," id. at 35, 141 A.2d 276. In particular, in rejecting the doctrine, the Court commented that it did so because it wanted to conform the law to what it perceived to be the "prevailing notions of public policy." Id. at 39, 141 A.2d 276. Two members of the Court filed dissents attacking both the majority's reliance on decisions from other states and commentators, id. at 61-67, 141 A.2d 276 (Burling, J., dissenting), as well as the theoretical underpinnings and the wisdom of the decision itself, id. at 48-61, 141 A.2d 276 (Heher, J., dissenting).

Our Legislature responded to this Court's abrogation of the doctrine of charitable immunity swiftly and decisively. See, e.g., Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 533-37, 472 A.2d 531 (1984) (explaining statutory history). The initial version of the bill, passed shortly after this Court's three decisions, included a sunset provision, providing that, unless re-enacted, it would expire a year later. Assembly Committee Substitute for Senate Bill No. 204 (July 22, 1958). It was intended to be a "stopgap" measure to return the State to its pre-Collopy status and afford the Legislature an opportunity to further address the question of the usefulness of the doctrine and its limits. Governor Meyner, in signing the 1958 bill into law, explained that the one-year statute would allow time for "the will of the representatives of the people" to be made clear. See Governor's Statement on Assembly Committee Substitute for Senate Bill No. 204 (July 22, 1958).

Our Legislature promptly did just that, enacting the Charitable Immunity Act before that first year expired, and without any sunset provision. L. 1959, c. 90, § 1 (codified at N.J.S.A. 2A:53A-7). When our Legislature spoke on the issue, it did so in stark contrast to the views expressed by this Court and the scholars on whom this Court had relied. Our Legislature also made its choice to reinstate the doctrine after the publication of two strongly-worded editorials in the New Jersey Law Journal that argued for a different course. The first applauded the Court's wisdom, proclaiming that "[f]ew will quarrel with the conclusion of the majority that our principles of justice today require that even a charity must pay its just debts and obligations" and commenting on the "impressive array of the considered writings of legal scholars" which the Court found persuasive. See Justice Before Charity, 51 N.J.L.J. 4 (May 8, 1958). The second, printed as the stopgap bill was being considered, called upon the Legislature to join the "enlightened" jurisdictions that had [474] abolished the doctrine. See The Senate Acts, 51 N.J.L.J. 4 (June 5, 1958).

In spite of those strong expressions of opinion, the Legislature enacted a law that was explicit in its embrace of the doctrine of charitable immunity as an expression of the public policy of this State. See N.J.S.A. 2A:53A-7(a). Although the statute has been amended from time to time, it remains a forceful statement of the will of the citizens as expressed through our Legislature. The Act's public policy underpinnings are simple and straightforward: namely, an intention to preserve the assets of the charities, specifically the dollars donated to those organizations by the people of our State, so as to devote them to the pursuit of the charities' purposes rather than to permit those dollars to be expended for the payment of damage awards to a particular claimant.

In adopting the Charitable Immunity Act our Legislature essentially reinstated the common law doctrine,^[11] including its historically-recognized exceptions. Significantly, our Legislature incorporated the exception that permits an individual who is not a beneficiary of a charity to sue for damages. See Lindroth v. Christ Hosp., 21 N.J. 588, 592-93, 123 A.2d 10 (1956) (concluding that doctrine did not bar suit against charity by one who was not a beneficiary of its good works).

At the same time, it appears that the Legislature responded to the Collopy Court's concern that hospitals being operated as nonprofit entities had far more in common with business ventures than they had with traditional charities. See Collopy, supra, 27 N.J. at 39-40, 141 A.2d 276. The Act therefore permitted suits by beneficiaries of charities operating exclusively as hospitals, albeit with a cap on damages. N.J.S.A. 2A:53A-8. This balanced approach demonstrates that the Legislature weighed carefully its decision about whether, and how extensively, to embrace the doctrine of charitable immunity from the start.

In adopting the Act in 1959, the Legislature made clear its intentions about the manner in which the Act was to be construed. From its inception the statute has specifically provided:

This act shall be deemed to be remedial and shall be liberally construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized for religious, charitable, educational or hospital purposes.

[N.J.S.A. 2A:53A-10.]

This expression of the Legislature's intent is unlike the ordinary language utilized to identify the purposes of remedial legislation. Most often, remedial legislation is interpreted so that it is applied liberally for the benefit of claimants. See, e.g., New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The Charitable Immunity Act, however, specifies that it is to be "liberally construed" in favor of the protected entities, that is, the charitable institutions that the Legislature has chosen to shield, and against the interests of those who would make claims against them. N.J.S.A. 2A:53A-10.

From time to time, our Legislature has amended the Charitable Immunity Act, [475] but each time it has done so in response to a specific circumstance. More often than not, the amendments have served to broaden rather than to limit or diminish the scope of the Act. For example, in 1987 the Act was amended so that it would extend the scope of immunity to include a variety of officers and volunteers working with charities. See L. 1987, c. 87 (Senate Bill No. 2705 codified at N.J.S.A. 2A:53A-7.1). The Statement of Assembly Insurance Committee that accompanied that bill expressed its reasoning as follows:

Nonprofit organizations have recently experienced difficulty in attracting and keeping qualified individuals to serve as officers and on boards of directors of nonprofit and charitable associations because of the potential exposure to lawsuits which exists. Exposure to liability in these cases often means that the individual's own assets are placed in jeopardy, and many individuals have been reluctant to subject themselves to this risk. By giving immunity to trustees, officers, directors, and other uncompensated volunteers, the bill's purpose is to permit nonprofit and charitable organizations to continue to attract able people to serve in these capacities.

[Assembly Insurance Committee, Statement to Senate Bill No. 2705 (Feb. 5, 1987).]

Even so, as its sponsor commented, the bill provided that officers and directors serving on such boards without compensation would not be protected if "their actions evidence a reckless disregard for their duties." Sponsor's Statement, Statement to Senate Bill No. 2705 (1986); see L. 1987, c. 87, § 1(a) (codified at N.J.S.A. 2A:53A-7.1(a)). Similarly, in extending the Act's protections to volunteers working on behalf of charities, the Legislature carefully excluded protection for their acts that are "willful, wanton or grossly negligent" or for "damage as the result of . . . negligent operation of a motor vehicle." L. 1987, c. 87, § 1(b) (codified at N.J.S.A. 2A:53A-7.1(b)).

In the following legislative session, the Act's protective scope was extended twice more. First, immunity was afforded to "coaches, managers, or officials of sports teams which are organized under the auspices of or sponsored or funded by counties or municipalities." See L. 1988, c. 87 (amending L. 1986, c. 13, and broadening Little League immunity); Assembly Insurance Committee, Statement to Senate Bill No. 1521 (May 23, 1988). Shortly thereafter, the protections of the Act were extended to boards of directors and volunteers of nonprofit blood banks, see L. 1988, c. 179, § 1 (codified at N.J.S.A. 2A:53A-7.2), in recognition of the challenges faced by those important entities and organizations as a result of the AIDS crisis. See Sponsor's Statement, Statement to Senate Bill No.1995 (Feb. 1, 1988).

The 1989 legislative session brought three more extensions of the Act, as bills were enacted to include library trustees, unless reckless, see L. 1989 c. 171, § 1 (Senate Bill No. 577 codified at N.J.S.A. 2A:53A-7.3); officers and volunteers serving nonprofit cemetery corporations organized for the purpose of maintaining or operating burial places, see L. 1989 c. 249 (Senate Bill No. 1244 codified at N.J.S.A. 2A:53A-7.1), and persons serving without compensation on economic development boards, see L. 1989, c. 283 (Senate Bill No. 235 codified at N.J.S.A. 2A:53A-7.1).

In 1995, the Legislature again amended the Act, extending immunity to a broad class of persons in response to concerns that charities were having trouble finding qualified people who were willing to serve on their boards of directors or as volunteers. In doing so, the Legislature spoke loudly about its view of the charitable immunity [476] doctrine in general. In particular, two aspects of the Sponsor's Statement in support of the bill that was enacted as L. 1995, c. 183 (amending N.J.S.A. 2A:53A-7) are significant. First, the Sponsor reiterated "the strongly held public policy of protecting charitable institutions against claims by its beneficiaries has been consistently reaffirmed and extended." Statement to Assembly Bill No. 1775 (May 12, 1994); see also Assembly Insurance Committee, Statement to Assembly Bill No. 1775 (June 13, 1994).

Second, that statement clearly identifies the public policies and the underlying purpose for the doctrine.

Given the purpose of the charitable immunity statute, to preserve the assets of the charity, it seems inconsistent with New Jersey public policy for the statute to preclude claims against the institution relating to the actions of its officers or employees, but permit claims directly against those officers or employees who are acting within the scope of their employment and to which the institution answers financially.

[Sponsor's Statement, Statement to Assembly Bill No. 1775 (May 12, 1994).]

During that same time frame, however, the Legislature made it clear that the doctrine is not without limits. In 1991, as part of a more general reform of the health care industry, the cap limiting damages that could be recovered from charities operating exclusively as hospitals was greatly increased. See L. 1991, c. 187. Although that increase in a potential damage award was part of a larger reform effort that balanced a variety of health care and insurance interests, it suggests that the Legislature again struck a balance in favor of injured plaintiffs rather than the nonprofit hospitals that had long been viewed as more like corporations than charities. In 1995, the Legislature limited the protections afforded to hospitals again, replacing the broadly worded protection with a narrower one for nonprofit hospital corporations, excluding from its scope certain health care providers who were compensated professionals employed by or acting as agents or servants of an otherwise exempt charity. See L. 1995, c. 183 (codified at N.J.S.A. 2A:53A-7(b)).

Of particular significance to the issue now before this Court, the Legislature has not been silent about its view of the scope of immunity for charities faced with claims of sexual abuse. In fact, the 1995 amendment expressly clarifies that there is no immunity for any of the individuals otherwise protected by the Act if they "caus[e] damage by a willful, wanton or grossly negligent act of commission or omission, including sexual assault and other crimes of a sexual nature." N.J.S.A. 2A:53A-7(c). That amendment did not make the charity itself liable to a victim of sexual abuse; it did, however, strip immunity from employees, officers, and volunteers, who otherwise would be within the broad scope of the Act's historically protective sweep.

Even so, the 1995 amendment to the Act demonstrates the Legislature's intention to treat those victims somewhat differently from others. It still did not generally permit suits by beneficiaries, limiting relief to those with claims based on "a willful, wanton or grossly negligent act." Ibid. Moreover, it still did not permit suits against the charities themselves, but it signaled a careful and thoughtful response by our Legislature to what was becoming an all-too-frequent occurrence.

The Legislature has since spoken further and has again considered the public policy behind charitable immunity in the face of repeated complaints relating to sexual abuse. In 2006, the Legislature amended the Act to remove immunity in cases involving claims that a charity engaged [477] in negligent hiring and supervision when the negligence proximately caused the sexual molestation of a beneficiary of the charitable organization who was under the age of eighteen. N.J.S.A. 2A:53A-7.4 (enacting Senate Bill No. 540). This, too, has been a balanced and limited response. Although the Legislature, for the first time, has permitted a direct claim to be brought against a charity by a beneficiary, it has limited strictly both the nature of the claim that may be brought and the identity of the injured person on whose behalf such a claim may be made.

This lengthy series of enactments, spanning nearly half a century, demonstrates a consistent expression by our Legislature of its desired public policy as it relates to charities. Overwhelmingly, that policy is one of encouraging the operation of charities and protecting their assets for use in the pursuit of their charitable purposes. It is, as well, a policy of assisting charities in their work by helping them to attract volunteers to serve on their boards and in their endeavors. Moreover, it is a policy of protecting charities' pools of donors who might otherwise decline to contribute to the charitable mission were their donated dollars at risk of diversion from that mission to either litigation or compensation of injured persons except in carefully defined and limited circumstances.

B.

Pennsylvania's contrary policy as it relates to tort liability and charities is expressed, as the majority points out, in a 1965 decision of its highest court. Flagiello v. Pa. Hosp., 417 Pa. 486, 208 A.2d 193 (1965). In Flagiello, the Supreme Court of Pennsylvania traced the history of charitable immunity and concluded that "[i]f there was any justification for the charitable immunity doctrine when it was first announced, it has lost that justification today." Id. at 197.

In discarding a doctrine that it concluded was archaic and lacking in sound reason, the Pennsylvania court was motivated by a number of considerations. First, the court relied heavily on the fact that the defendant in that matter was a hospital, an entity that had been transformed over time from a provider of free medical care for the needy into a large and well-funded "business institution." Id. at 196-97. As such, the court considered the history of charities generally and the evolution of many of them into modern businesses. Relying heavily on that evolution, the Court reasoned that there was no justification for providing such entities with immunity from suit. Id. at 204.

Second, the court relied on its belief that injured citizens of that state were entitled to be compensated. It reasoned that charitable immunity amounted to a denial of equal justice because a citizen injured by any other business would have recourse, but one injured by a hospital would not. Id. at 201. Third, the court pointed out that the doctrine was not absolute, leading to "paradoxical" results that appeared to weigh property interests more heavily than "interest in life and limb." Id. at 203 (quoting E.H. Schopler, Annotation, Immunity of Nongovernmental Charity From Liability For Damages In Tort, 25 A.L.R.2d 29, 40, § 3 (1952)). The court noted: "The immunity doctrine offends against fundamental justice and elementary logic in many ways. Thus, while it closes the doors of the courts to a person whose body has been injured, it opens them wide where inanimate property has been damaged through the hospital's maintenance of a nuisance." Ibid.

Similarly, as the court explained, the doctrine was not equally applied because that court had concluded, in a series of [478] earlier decisions, that physicians who practiced in hospital settings could, under certain circumstances, be liable not only for their own negligence but for that of other hospital personnel as well. Ibid.; see Rockwell v. Kaplan, 404 Pa. 574, 173 A.2d 54, 57 (1961) (holding "that doctors are subject to the law of agency and may at the same time be agent both of another physician and of a hospital"); Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255, 260-62 (1959) (same); McConnell v. Williams, 361 Pa. 355, 65 A.2d 243, 248 (1949) (holding physician liable to his private patient being treated at hospital, through principles of respondeat superior, for actual negligence of hospital staff intern). In evaluating the question of who or what was being protected by the immunity doctrine, as well as considering on whom the losses caused by negligence at hospitals fell, the court concluded that the doctrine had become "an instrument of injustice," Flagiello, supra, 208 A.2d at 206, that could no longer be retained. Indeed, the court stated its justification in strong words: "where justice demands, reason dictates, equality enjoins and fair play decrees a change in judge-made law, courts will not lack in determination to establish that change." Id. at 208.

Finally, when the Supreme Court of Pennsylvania abrogated the doctrine of charitable immunity in 1965, it announced that it chose that course in part because other courts had done likewise. Citing decisions from around the country, relying on scholarly pronouncements about what the law should be, and embracing the expressions of the "trend of judicial opinion" as articulated in scholarly commentaries, see id. at 197 (citing Restatement (Second) of Trusts, § 402(2), comment 2), that court made its decision to change what had previously been a part of the fabric of its common law. That court's opinion abrogating the doctrine of charitable immunity stands today as both its expression of the common law, and its evaluation of the underlying public policy interests, that apply to the citizens of that state.

C.

One can distill from these two diametrically opposite views on the question of charitable immunity several underlying policy considerations. First, the Pennsylvania court's abrogation of charitable immunity in Flagiello arises from public policy considerations common to all torts. That court has elected to focus on the goals of compensating victims injured in circumstances where any other victim would be able to recover. It was guided in part by the emergence of hospitals as "big businesses" that are now far removed from their charitable origins. It considered the role of the courts in seeking to deter conduct that is negligent or careless by imposing a cost on the entity that engages in that conduct. It expressed its intention to align its policies with those of other states. Perhaps most significant, the Pennsylvania court made the protection of the citizens of its own state its primary focus. The values it expressed were virtually identical to the ones that motivated this Court when it decided Collopy and the other cases in the trilogy that abrogated the common law doctrine in this State.

On the other hand, our Legislature, in full recognition of those very values and considerations, as expressed in Collopy, has spoken clearly, decisively, and repeatedly with a contrary expression of public policy. In our Legislature's view, charities are to be encouraged to operate and to perform their good works for the benefit of our citizens. Donations to those charities, not only in the form of dollars, but in terms of time and talents of volunteers who serve on their boards and [479] as part of their mission, are to be protected. The purpose of that protection is not only to permit those charities to continue to serve, but to encourage more people to contribute their dollars, their time, and their talents so as to serve the greater public good. Over and over since 1958, our Legislature has both reaffirmed and, where appropriate, extended the scope of the Act to meet those oft-repeated purposes.

At the same time, our Legislature has been neither slavish nor shortsighted in its protection of charities. It has always allowed a limited right to proceed against nonprofit hospitals. It has embraced the common law notion that one who is not a beneficiary of the charity can maintain a cause of action. It has permitted suits to proceed against medical professionals whose connection with the charity is incidental and whose negligence will not be imputed to the charity. It has permitted suits for acts of employees of charities that are wanton, reckless, and grossly negligent. Most recently, it has permitted suits to be brought against the charities themselves on behalf of minors who have been the victims of sexual assault based on a claim that the charity's negligent hiring, supervision, or retention of employees and others was the cause of that assault.

The approach that we have taken to engage in our choice of law analysis has varied with the circumstances, but it has never, until today, strayed from the governmental interest approach. At its core, that framework requires us to identify the public policies involved in each state's statutory or common law and evaluate which jurisdiction has the greater interest in having its law applied to the dispute. In some cases, either the underlying policies or the interests of the states have been unclear and we have looked to the Restatement (Second) to inform us about the interests that might bear on the analysis. See Erny, supra, 171 N.J. at 101-04, 792 A.2d 1208; Fu, supra, 160 N.J. at 122-28, 733 A.2d 1133. In others, including most recently, the policies and competing interests that each state was seeking to serve have been readily apparent. See Rowe, supra, 189 N.J. at 622-23, 917 A.2d 767. In all circumstances, however, we have adhered to the governmental interest analysis, varying only with regard to the sources to which we look to identify and understand those governmental interests.

III.

Engaging in the governmental interest analysis in this matter is aided by the clear expressions of public policy that support our statute and by the thorough explanation of the public policy considerations included in the Pennsylvania court's decision with its contrary views. The task of weighing each against the other requires a consideration of how the application of the two approaches would bear on the effectuation of the expressed public policies of each forum.

The sparse facts are only that P.V. is a New Jersey domiciliary who has Down Syndrome, and that while she was attending camp for her third time during August 2003, she was sexually assaulted by another camper, sought medical attention, and "suffered extreme mental anguish." The only other facts included in the record are that defendant was incorporated as a New Jersey charity and has been in operation since 1975, has its administrative offices here, and operates the camp on property that it leases in Pennsylvania. Nothing in the record reflects where the campers other than P.V. are domiciled or where staff are recruited or trained.

Armed with only these few facts, however, we can engage in our traditional governmental interest analysis. Simply put, if [480] we apply our Charitable Immunity Act to this matter, we will achieve the result that our Legislature has mandated be the litigation outcome for all citizens of our State. In light of the fact that both plaintiff and defendant are citizens of this State, we will have treated them no differently from any other person who is a beneficiary of one of the charities that operates within our borders. We will have done no more than subject both plaintiff and defendant to all of the benefits and burdens of their domicile. We will at the same time preserve the assets of the charity in a circumstance in which our Legislature has mandated that the entity and its assets be protected.

At the same time, application of our statute to this dispute will do nothing to undermine the common law of Pennsylvania or its goals. Because plaintiff is not a resident of that state, we will not prevent one of Pennsylvania's citizens from recovering a damage award and will not create a distinction between those citizens of that state who may be compensated and those who cannot. In terms of loss allocation or compensation, we will do nothing to offend or interfere with the policies of our sister state.

Were we to apply our law, we potentially would be sanctioning, at least to some extent, blameworthy conduct that occurred in another state. Thus, if we see tort law generally as a mechanism for conduct regulation, applying our law to conduct that took place in Pennsylvania might not serve that goal. Were this intentional conduct, or were it an act of an employee or agent of the charity, the conduct regulation goal would be significant. Indeed, if the conduct were the reckless or grossly negligent acts of an employee or volunteer, our own Act would lift the cloak of immunity as well.

Here, however, plaintiff makes no claim that any employee, agent, or servant of the charity assaulted her; she makes no claim that a volunteer working at the camp assaulted her. Instead she alleges that another camper, presumably one who was not being monitored or supervised sufficiently, did so. In that context, the conduct to be regulated through Pennsylvania's common law is not sexual assault at all. The conduct, as it relates to the law and the governmental interest that it represents, must be some conduct of the charity. That is to say, the conduct must either be the charity's choice of the other camper to be a participant in its program or its training of its volunteers or paid personnel at the camp who failed to monitor plaintiff and her free movements around the camp.

Although the injury occurred in Pennsylvania, it is not clear from this record that the conduct on the part of the charity also occurred there. If the charity's conduct is defined as the failure to supervise plaintiff or the other camper, then it occurred principally in Pennsylvania. However, if the legally relevant conduct of the charity is its acts relating to hiring or training its staff, or in recruiting volunteers, or in selecting campers, or in designing the program itself, that conduct likely occurred in New Jersey. As grievous as an act of sexual assault is, the interest of Pennsylvania in regulating whatever conduct of the charity is alleged to have permitted it to occur is attenuated.

Nor would refusal to apply Pennsylvania's policy prevent it from actually regulating the conduct it finds should be compensable. That state has adopted a variety of statutes and regulations governing the operation of camps. See 35 Pa. Stat. Ann. § 3002 (requiring camps to register with the Department of Health and pay annual registration fee to state treasury); 28 Pa.Code § 19.2 (requiring submission of camp building [481] plans to Department of Health); 28 Pa. Code § 19.13 (authorizing Department of Health to issue one-year permits to camps that satisfy Department's regulations); 28 Pa.Code § 17.11 (requiring local health departments to issue camp permits based on compliance with applicable rules and standards, and requiring regular inspections prior to issuing or renewing permits). Pennsylvania's ability to ensure that camps are operating in accordance with its public policies about standards of care can continue to be addressed in that manner.

On the other hand, applying Pennsylvania's common law to this dispute can and will thwart our Legislature's expression of the will of the people. Charitable dollars, donated to a New Jersey charity for the benefit of this New Jersey resident, will be devoted to litigation and, should plaintiff prevail, to the payment of compensation. At the same time, nothing in this record suggests that this defendant is the sort of "big business" charity that the Pennsylvania court sought to regulate. Nor can we precisely evaluate the magnitude of the impact that a damage award might have on this charity or its other programs; but we can be certain that dollars that would otherwise be devoted to its charitable works will not be. Whether the dollars available for the charity's other works merely will be reduced, or whether they perhaps will be eliminated through this litigation we cannot know. Whether the charity will conclude that it will no longer be able to operate the camp program we cannot forecast. As our Legislature has cautioned, however, the effect might also be that donors will cease supporting this and other charities, fearing a like fate for their contributions.

Moreover, by applying Pennsylvania's common law to this matter, one New Jersey resident, this plaintiff, will be treated differently for purposes of tort liability from every other beneficiary of our charities, simply because of where she was when the injury occurred. Applying the law of Pennsylvania to this matter might serve that state's general goals, expressed through its common law, of encouraging all who are within its borders to exercise more care, but it will not serve its larger policy goals by compensating a citizen of that state. Instead it will compensate a citizen of this State who, it would appear, did not choose to be in Pennsylvania for any particular protections that the state might offer.

Our traditional governmental interest analysis makes it apparent that the interests of our State, as expressed by our Legislature, will be significantly impaired by the application of Pennsylvania's common law to these two New Jersey citizens. At the same time, Pennsylvania's interests would not be significantly furthered by the application of its own law nor will they be hindered in any meaningful way by the refusal of this Court to apply its law to this dispute.

In embracing a new choice of law methodology and in its application, the majority has abandoned our usual, careful weighing of governmental interests and, in the process, ignored the strong public policy interests undergirding charitable immunity that have been repeatedly and forcefully expressed by our Legislature. I therefore respectfully dissent.

For affirmance and remandment— Chief Justice RABNER and Justices LONG, ALBIN and WALLACE—4.

For reversal—Justices LaVECCHIA, RIVERA-SOTO and HOENS—3.

[1] The certificate of incorporation does not limit the organization to providing services to New Jersey residents.

[2] By 2006, only ten states continued to adhere to the First Restatement for tort cases. Symeon C. Symeonides, Choice of Law in the American Courts in 2006: Twenty-First Annual Survey, 54 Am. J. Comp. L. 697, 712 (2006).

[3] Section 168, which provides specific guidance regarding charitable immunity, adheres to that analysis: "The law selected by application of the rule of § 145 determines issues of charitable immunity." Restatement, supra, § 168.

[4] Our dissenting colleagues lament the loss of the "more nuanced" governmental interest approach. Post at 157-58, 962 A.2d 468-69. The question is, more nuanced than what? It is certainly fair to suggest that the governmental interest analysis is more nuanced than its predecessor, the bright line lex loci test. However, as the Second Restatement itself underscores, the most significant relationship test embodies all of the elements of the governmental interest test plus a series of other factors deemed worthy of consideration. Restatement, supra, § 6(2)(b)-(c). As a matter of simple logic, the new end point—the most significant relationship test—is more and not less nuanced than its predecessor.

[5] That is the decisional rationale that has been adopted by the majority of our sister jurisdictions that abide by the Second Restatement. See, e.g., Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 316 Ill.Dec. 505, 879 N.E.2d 893, 903-05 (2007); Malena v. Marriott Int'l, Inc., 264 Neb. 759, 651 N.W.2d 850, 856-57 (2002); McKinnon v. F.H. Morgan & Co., Inc., 170 Vt. 422, 750 A.2d 1026, 1028-29 (2000); Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 474 N.E.2d 286, 289 (1984). We recognize as we reaffirm our adherence to the most significant relationship test that the Second Restatement has, like its predecessor, come under criticism. See, e.g., Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L.Rev. 249, 253 (1992) ("Trying to be all things to all people, it produced mush."); Shaman, supra, 45 Buff. L.Rev. at 357 ("Because the second Restatement tries to be so much and do so much, it is rife with inconsistency, incongruence, and incoherence."). Nevertheless, we believe that its exhaustive analytical framework is an advance over prior models and places us in company with the majority of our sister jurisdictions that have aligned themselves with a specific approach. Symeonides, supra, 54 Am. J. Comp. L. at 712 (identifying twenty-three states that have adopted the Second Restatement approach).

[6] The Charitable Immunity Act does not apply to "aggravated wrongful conduct, such as malice or fraud, or intentional, reckless and wanton, or even grossly negligent behavior." Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 97, 902 A.2d 900 (2006) (quoting Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 542, 472 A.2d 531 (1984) (Handler, J., dissenting)).

[7] Most conflicts scholars are in accord with the dissent. The majority opinion in Schultz has been excoriated by conflicts scholars of every stripe as "awful," "perfidious," "troubling," "perverse," "nonsensical," "irrational," and in line with New York's "own bad record in choice of law cases." See Patrick J. Borchers, Conflicts Pragmatism, 56 Alb. L.Rev. 883, 910-11 (1993); Alan Reed, The Anglo-American Revolution in Tort Choice of Law Principles: Paradigm Shift or Pandora's Box?, 18 Ariz. J. Int'l & Comp. L. 867, 887 (2001); Reynolds, supra, 56 Md. L.Rev. at 1408-11 (1997); Aaron D. Twerski, A Sheep in Wolf's Clothing: Territorialism in the Guise of Interest Analysis in Cooney v. Osgood Machinery, Inc., 59 Brook. L.Rev. 1351, 1358-59 (1994).

[8] We note that, on the merits, this case is entirely distinct from Schultz insofar as the Boy Scout troop in Schultz was chartered in New Jersey and the assault took place on an outing to New York. 491 N.Y.S.2d 90, 480 N.E.2d at 681. In fact, some assaults in Schultz also took place in New Jersey. Ibid. Here, the camp was a fixture in Pennsylvania and the assaults and the injury occurred there.

[9] See, e.g., William L. Reynolds, The Silver Anniversary of the Second Conflicts Restatement: Legal Process and Choice of Law, 56 Md. L.Rev. 1371, 1388 (1997) ("criticiz[ing] the Second Restatement for its lack of a system and . . . consequential invitation to open-ended or indeterminate decisionmaking"); Patrick J. Borchers, Conflicts Pragmatism, 56 Alb. L.Rev. 883, 901-02 (1993) (describing effort of one academic to "convince the West Virginia Supreme Court to [embrace the Second Restatement] . . . largely on the grounds that [it] has so much wiggle room").

[10] One recent commentator has lamented the movement of courts away from the "clear, plausible answers" that the lex locus approach yielded, describing the more modern theories as "the destruction of rationality." Earl M. Maltz, Do Modern Theories of Conflict of Laws Work? The New Jersey Experience, 36 Rutgers L.J. 527, 527 (2005). Although much might be said about the confusion that the various theories offered by commentators over the years has created for many courts, we need only comment on the unfair outcomes that the previous rigidity created to explain our preference for the more modern approach that we have adopted.

[11] The first version of the bill introduced in response to the Court's trilogy of decisions actually would have extended the scope of charitable immunity, as it would not have included the historical limitation that prohibited beneficiaries from bringing suit. See Senate Bill No. 204 (introduced May 5, 1958).

Chris P. Ledwidge, Portland, argued the cause for appellant. With him on the briefs were Ledwidge & Ledwidge, Portland.

Charles R. Holloway, III, Portland, argued the cause for respondents. With him on the brief were Tooze, Kerr & Peterson, Portland.

HOLMAN, Justice.

This is an action for damages for loss of consortium alleged to have been suffered when plaintiff's husband was injured in an [495] accident. Plaintiff appealed from a judgment for defendant which was entered after a demurrer was sustained to plaintiff's complaint and plaintiff refused to plead further.

Defendant Thomas, while operating a truck in the state of Washington in the course of his employment for defendant Shepler, is alleged to have negligently injured plaintiff's husband. Defendant Thomas is an Oregon resident and his employer, defendant Shepler, is an Oregon corporation. Plaintiff and her injured husband are residents of Washington. Washington, by court decision, has followed the common law rule that no cause of action exists by a wife for loss of consortium. Ash v. S.S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953). Oregon allows such an action, ORS 108.010.

The issue is whether Oregon law or Washington law is applicable. It is with some trepidation that a court enters the maze of choice of law in tort cases. No two authorities agree.^[1] Until recently, this court was committed to the traditional, arbitrary, and much criticized rule that in tort cases the law of the place of the wrong, lex loci delicti commissi, governs. However, in the case of Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898 (1967), this court adopted the equally maligned and almost universally criticized "most significant relationship"^[2] approach of Restatement (Second) Conflict of Laws.

However, before engaging in the mysteries of the solution of an actual conflict, we must make certain that we have a conflict of consequence which requires a choice. All authorities agree that there is such a thing as a false conflict which requires no choice. However, typically, there is no agreement on what constitutes a false conflict. Professors Cavers,^[3] Currie,^[4] and Sedler,^[5] together with Mr. Justice Traynor,^[6] appear to urge that the policy or governmental interest behind the law of each state be examined and that a false or avoidable conflict be considered present if no substantial conflict is found to exist between the states' policies or interests in the particular factual context in which the [496] question arises.^[7] On the other hand, Professors Leflar,^[8] Rosenberg,^[9] and Ehrenzweig^[10] see a false conflict as being limited to a situation where the laws of two states are the same or would produce the same results. Where the laws of two states are not the same or would not produce the same results if applied, these latter authorities see the search for and the comparison of the interests of the two states as a means (not necessarily the best or only means) of deciding an actual conflict, not as a means of determining whether a conflict exists.^[11]

Where, in the particular factual context, the interests and policies of one state are involved and those of the other are not (or, if they are, they are involved in only a minor way), reason would seem to dictate that the law of the state whose policies and interests are vitally involved should apply; or, if those of neither state are vitally involved, that the law of the forum should apply. It may well be that determining what interests or policies are behind the law of a particular state is far from an exact science and is something about which there can be legitimate disagreement; but, on the other hand, it is the kind of an exercise, for better or for worse, which courts do every day and, therefore, feel secure in doing. If such a claimed conflict can be so disposed of, whether it is called false or not, the disposition certainly seems preferable to wandering off into the jungle with a compass which everyone but its maker says is defective.

Let us examine the interests involved in the present case. 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.^[12] No Washington defendant is going to have to respond for damages in the present case, since the defendant is an Oregonian. Washington has little concern whether other states require non-Washingtonians to respond to such claims. Washington policy cannot be offended if the court of another state affords rights to a Washington woman which Washington does not afford, so long as a Washington defendant is not required to respond. The state of Washington appears to have no material or urgent policy or interest which would be offended by applying Oregon law.

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. Even if Oregon were so concerned, it would offend no substantial Washington interest.

It is apparent, therefore, that neither state has a vital interest in the outcome of this litigation and there can be no conceivable material conflict of policies or interests if an Oregon court does what comes [497] naturally and applies Oregon law.^[13] Professor Currie expresses it thusly:

"* * * The closest approximation to the renvoi problem that will be encountered under the suggested method is the case in which neither state has an interest in the application of its law and policy; in that event, the forum would apply its own law simply on the ground that that is the more convenient disposition * * *." B. Currie, Notes on Methods and Objectives in the Conflict of Laws, Selected Essays on the Conflict of Laws 184 (Footnote omitted) (1963).

An examination of the writings of those scholars who believe that an actual controversy exists in a situation similar to the present indicates, without an exception, they would reach the same result as we do, by either different or partially different reasoning.

The next question is whether our decision in Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898 (1967), is incompatible with our disposition of the present case. In Casey, which adopted and applied Restatement (Second) Conflict of Laws, an actual conflict existed. An Oregon wife brought a loss of consortium action because of an injury to her husband, also an Oregon resident, which was negligently inflicted in Washington by a Washington resident. We there held that Washington defendants should not be required to accommodate themselves to the law of the state of residence of any traveler whom they might injure in Washington; that under the given circumstances, Washington's interest in the matter, which was protective of Washington defendants, was paramount to Oregon's interest in having its resident recover for her loss; and that Washington's relationship was the more significant and Washington law applied.

Our confidence in any set body of rules as an all-encompassing and readily applicable means of solution to conflict cases is not so great that we desire to undertake the application of such rules except in those situations where the policies and interests of the respective states are in substantial opposition. We see no such conflict here and, therefore, find it unnecessary to resort to any such set of rules. We are little concerned whether we are presented with a false conflict or with an actual conflict capable of solution by resorting to our analysis of the interests and policies of the respective states. Where such policies and interests can be identified with a fair degree of assurance and there appears to be no substantial conflict, we do [498] not believe it is necessary to have recourse in the "contacts" of Section 145(2) of Restatement (Second) Conflict of Laws.

The judgment of the trial court is reversed and the case is remanded for further proceedings.

TONGUE, J., concurs in the result.

BRYSON, Justice (dissenting).

This vehicle accident occurred in the state of Washington. The defendant Shepler, the truck driver, is an Oregon resident and his employer, Shepler Refrigeration, Inc., is an Oregon corporation. Plaintiff and her injured husband are residents of the state of Washington.

The plaintiff brought this action in Oregon to recover damages for loss of consortium. As stated in the majority opinion, Washington, by common law decision, denies the wife a right of action for loss of consortium for injury to her husband. Ash v. S.S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953). Oregon, by statute, allows such an action. ORS 108.010. This statute establishes that all Oregon wives have the same civil rights as Oregon husbands, including the "right of action for loss of consortium of her husband." I fail to see how the Oregon Legislature can do as much for Washington wives.

Regardless of whether we follow the Restatement (see Note 2 of the majority opinion) or the law of the place of the wrong, I do not believe we can or should bestow Oregon statutory rights for women on women of the state of Washington.

In Berghammer v. Smith, 185 N.W.2d 226, 231, 232 (Iowa 1971), the same problem arose in an action for loss of consortium. The accident occurred in Iowa and the plaintiff resided in Minnesota, which state, at the time, denied the plaintiff the right to bring an action for loss of consortium. The Iowa court stated:

"We hold Minnesota has the most significant — indeed, perhaps the only — relationship with plaintiff and the issue of her right to maintain an action for loss of consortium. We reach this conclusion because only Minnesota is concerned with the marital status of plaintiff and the interspousal rights and duties arising therefrom.

"Iowa has no state interest to protect * * *.

"Nor may it be said our policy recognizing a wife's claim for loss of consortium was intended primarily to do more than extend such right to Iowa wives.

"* * *.

"There is considerable authority that matters which depend upon the marital relationship for their solution should be decided by the law of the husband-wife domicile. See Reich v. Purcell, 67 Cal.2d 551, 63 Cal. Rptr. 31, 432 P.2d 727; Wartell v. Formusa, 34 Ill.2d 57, 213 N.E.2d 544; Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254; Haumschild v. Continental Casualty Company, 7 Wis.2d 130, 138, 95 N.W.2d 814, 818; Thompson v. Thompson, 105 N.H. 86, 89, 193 A.2d 439."

Obviously the plaintiff could not bring this action in her state, Washington, but the majority opinion holds that by merely stepping over the state boundary into Oregon she is then bestowed with the right given wives who are residents of the state of Oregon, which includes the right of action for loss of consortium of her husband.

There is definitely a conflict in the policy of the states of Washington and Oregon regarding the right to bring an action for loss of consortium.

I would affirm.

[1] The writer of this opinion has a suspicion that where actual and substantial conflicts exist the problems are not capable of rational solution except on an ad hoc basis.

[2]"§ 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."

"§ 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.

"(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."

[3] David F. Cavers, Professor of Law, Emeritus, Harvard University.

[4] Brainerd Currie, William R. Perkins Professor of Law, Duke University.

[5] Robert A. Sedler, Professor of Law, University of Kentucky.

[6] Roger J. Traynor, Chief Justice of California, retired.

[7] See Symposium, Conflict of Laws Round Table, 49 Tex.L.Rev. 211 (1971); B. Currie, Selected Essays on the Conflict of Laws 189-90 (1963); Traynor, Is this Conflict Really Necessary?, 37 Tex. L.Rev. 657 (1959); D. Cavers, The Choice of Law Process 72-74 (1965).

[8] Robert A. Leflar, Professor of Law, New York University, and Distinguished Professor of Law, University of Arkansas, Former Justice, Supreme Court of Arkansas.

[9] Maurice Rosenberg, Professor of Law, Columbia University.

[10] Albert A. Ehrenzweig, William Perry Johnson, Professor of Law, University of California School of Law (Berkeley).

[11] See Leflar, True "False Conflicts," Et Alia, 48 Boston U.L.Rev. 164 (1968); Symposium, Conflict of Laws Round Table, 49 Tex.L.Rev. 211 (1971); Ehrenzweig, A Counter-Revolution in Conflicts Law? From Beale to Cavers, 80 Harv.L.Rev. 377 (1966).

[12] See Casey v. Manson Constr. Co., 247 Or. 274, 290-91, 428 P.2d 898 (1967).

[13]A recent case involving a similar problem is Berghammer v. Smith, 185 N.W.2d 226 (Iowa 1971), in which a Minnesota wife sought damages for injuries suffered by her husband in an Iowa accident. The defendant was an Illinois resident. Both Iowa and Illinois allowed the wife's action for loss of consortium. At the time of the accident, the Minnesota rule did not permit the action. Before the trial, however, Minnesota, by judicial decision, changed its rule to allow recovery but determined that the new rule would be applied prospectively only. The Iowa court, which had previously adopted the Restatement (Second) approach to conflicts in tort law, determined that Minnesota, as the marital domicile, was the state with the most significant relationship with the plaintiff and the issue involved. The court was then faced with the problem whether to apply Minnesota law as it existed at the time of the accident, denying the plaintiff's action, or to give effect to the new Minnesota rule which would allow the action. The court chose to apply the new rule, stating:

"By enforcing the now discarded Minnesota rule, we would ignore our own state policy without advancing Minnesota's. Certainly Minnesota's purpose was not to protect non-resident motorists who had not relied upon the old rule at the expense of its own citizens." 185 N.W.2d at 233.

If the court had made its examination of the relevant interests of Minnesota before it uncritically decided that the law of the marital domicile should be applied, it would have been apparent from the beginning that Minnesota had no interest in the application of its rule denying recovery under the circumstances, and that Minnesota's interests would not be violated by allowing the plaintiff to recover. Minnesota's new rule, and its prospective application by the Minnesota court, would have caused no difficulty.

Wolfstone, Panchot, Bloch & Kelley and J. Porter Kelley, for appellant.

Guttormsen, Scholfield & Stafford, by Jack P. Scholfield and A. Richard Dykstra, for respondents.

HAMILTON, J.

Appellant, Geneve Johnson, appeals a summary judgment dismissing her wrongful death complaint on the grounds of forum non conveniens and declaring Kansas law to be the applicable choice of law.

Jack Johnson owned an exterior building cleaning business in Topeka, Kansas. He purchased a scaffold for his business from respondents, Spider Staging Corporation, Spider Staging, Inc., and Spider Staging Sales Company. On July 19, 1971, Jack Johnson was killed when he fell 60 feet from the scaffold. Appellant sued respondents for wrongful death, claiming they defectively designed the scaffold in that it could not withstand the stress of normal use.

The parties initially argued the choice-of-law issue to the trial court. Kansas law has a $50,000 wrongful death limitation.^[1] Washington has no damage limitation on [579] wrongful death actions. The trial court applied both the lex loci delecti and the most significant relationship choice-of-law rules and concluded Kansas law applies to the facts of this case. The trial court also dismissed appellant's complaint under the doctrine of forum non conveniens with a stipulation that respondents will submit to the jurisdiction of Kansas and will not plead the statute of limitations as a defense. The trial court entered a summary judgment in respondents' favor and appellant appeals from this judgment.

[1] At the outset, we must determine whether the trial court properly applied the doctrine of forum non conveniens. If so, we need not reach the choice-of-law issue, as Kansas will assume jurisdiction and determine the applicable law. Forum non conveniens refers to the discretionary power of a court to decline jurisdiction when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum. See Werner v. Werner, 84 Wn.2d 360, 370, 526 P.2d 370 (1974). In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L.Ed. 1055, 67 S.Ct. 839 (1947), the Supreme Court outlined the factors a court should consider when applying the forum non conveniens doctrine:

Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.

(Footnote omitted.)

[580] The factors in the present case do not strongly favor the respondents-defendants. For example, all of the evidence which pertains to the manufacturing and marketing of the scaffold is in Washington State. Respondents are Washington corporations, and all of their principal officers reside in King County. Both of the engineers who designed the scaffold live in King County. The two principal witnesses from Kansas stated in affidavits that they willingly would appear in Washington. Also, appellant will bring the scaffold to Washington and give respondents an opportunity to examine it. The trial court therefore should not have disturbed appellant's choice of forum.

[2] We now proceed to determine the appropriate choice of law. Respondents contend this jurisdiction still follows the lex loci delecti choice-of-law rule. This rule would require the court to apply the law of the place of wrong. In wrongful death actions the law of the place of injury would be the applicable law, see G. Stumberg, Principles of Conflicts of Laws 190-92 (3d ed. 1963), and in this case the injury occurred in Kansas. However, our recent decisions have rejected the lex loci delecti choice-of-law rule and have adopted the most significant relationship rule for contracts and tort choice-of-law problems. Werner v. Werner, supra; Potlatch No. 1 Fed. Credit Union v. Kennedy, 76 Wn.2d 806, 459 P.2d 32 (1969); Baffin Land Corp. v. Monticello Motor Inn, Inc., 70 Wn.2d 893, 425 P.2d 623 (1967); see Trautman, Evolution in Washington Choice of Law — A Beginning, 43 Wash. L. Rev. 309 (1967). The Restatement (Second) of Conflict of Laws § 6 (1971), with which we are in accord, developed this new approach, and section 145 sets out the general principles which apply to a tort choice-of-law problem:

(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 [581] 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.

(Italics ours.) Accord, Restatement (Second) of Conflict of Laws §§ 175-80 (1971). Our approach is not merely to count contacts, but rather to consider which contacts are most significant and to determine where these contacts are found. Baffin Land Corp. v. Monticello Motor Inn, Inc., supra at 900. We therefore must consider the significant contacts of this cause with the states of Washington and Kansas. The following is a summary of these contacts:

        Washington                           Kansas1. Respondents are Washington        1. Appellant and Jackcorporations, and                    Johnson were residentsWashington is their principal        and domiciliaries of Kansas.place of business.2. The scaffold was designed,        2. Jack Johnson's place oftested, and manufactured             business was in Kansas.in Washington.3. All of Respondents' advertising   3. Jack Johnson orderedoriginated in                        the scaffold from Respondents'Washington and was developed         Kansas City distributor.by Washington personnel.4. The scaffold was shipped          4. Kansas was the place offrom Washington to Kansas            the accident and death.and pursuant to RCW62A.2-401 (2) (a)

^[2]

 title [582]  passed to Jack Johnson atthe time and place of shipment.5. Washington State set thesafety requirements for thescaffold.

Each state has a distinct relationship with this cause, and the contacts are evenly balanced. However, Potlatch No. 1 Fed. Credit Union v. Kennedy, supra at 810, directs us to a "consideration of the interests and public policies of potentially concerned states and a regard as to the manner and extent of such policies as they relate to the transaction in issue." This state interest analysis was also contemplated in Restatement (Second) of Conflict of Laws § 175, comment d at 523 (1971), wherein it states:

Whether there is such another state should be determined in the light of the choice-of-law principles stated in § 6. In large part, the answer to this question will depend upon whether some other state has a greater interest in the determination of the particular issue than the state where the injury occurred. The extent of the interest of each of the potentially interested states should be determined on the basis, among other things, of the purpose sought to be achieved by their relevant local law rules and of the particular issue involved (see § 145, Comments c-d).

(Italics ours.)

A state's interest in limiting wrongful death damages is to protect defendants from excessive financial burdens. The state also seeks to eliminate speculative claims and difficult computation issues. Hurtado v. Superior Court, 11 Cal.3d 574, 580-81, 522 P.2d 666, 114 Cal. Rptr. 106 (1974); Reich v. Purcell, 67 Cal.2d 551, 556, 432 P.2d 727, 63 Cal. Rptr. 31 (1967). This interest in preventing financial burdens and exaggerated claims is primarily local; that is, a state by [583] enacting a damage limitation seeks to protect its own residents. Hurtado v. Superior Court, supra at 580-84; Reich v. Purcell, supra at 556.

Hurtado v. Superior Court, supra at 583-84, discusses a state's interest in recognizing a wrongful death action and allowing full recovery:

It is manifest that one of the primary purposes of a state in creating a cause of action in the heirs for the wrongful death of the decedent is to deter the kind of conduct within its borders which wrongfully takes life.... It is also abundantly clear that a cause of action for wrongful death without any limitation as to the amount of recoverable damages strengthens the deterrent aspect of the civil sanction: "the sting of unlimited recovery ... more effectively penalize[s] the culpable defendant and deter[s] it and others similarly situated from such future conduct."

(Citations omitted. Italics ours.)

In this case all the defendants are Washington corporations, and the application of the Kansas wrongful death limitation will not protect Kansas residents. It will merely limit the damages of its own residents. Further, Washington's deterrent policy of full compensation is clearly advanced by the application of its own law. Unlimited recovery will deter tortious conduct and will encourage respondents to make safe products for its customers.^[3] When one of two states related to a case has a legitimate interest in the application of its law and the other state has no such interest, clearly the interested state's law should apply. Hurtado v. Superior Court, supra at 580. Kansas has no interest in applying its limitation to nonresident defendants being [584] sued in their home state, and Washington has a legitimate interest in the application of its law. We therefore find Washington law to be the appropriate choice of law to apply to the facts of this case.

The judgment is reversed, and the cause is remanded for further proceedings consistent herewith.

STAFFORD, C.J., and ROSELLINI, HUNTER, WRIGHT, UTTER, BRACHTENBACH, HOROWITZ, and DOLLIVER, JJ., concur.

[1] Kan. Sess. Laws of 1970, ch. 241, § 1, provides: "In any such action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages cannot exceed in the aggregate the sum of ... fifty thousand dollars ($50,000)and costs."

The Kansas legislature repealed this statute and enacted Laws of 1975, ch. 303, § 2. The new statute only limits the amount of nonpecuniary damages. It provides: "In any such action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of twenty-five thousand dollars ($25,000) and costs." KSA 60-1903.

[2]RCW 62A.2-401 (2) (a) provides:

"(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading.

"(a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment ..."

[3] Finally, Potlatch No. 1 Fed. Credit Union v. Kennedy, 76 Wn.2d 806, 810, 459 P.2d 32 (1969), indicates the court should consider the justifiable expectations of the parties. Respondents advertise and sell their products in all 50 states, and only a few of these states have wrongful death limitations. They design and manufacture their product in Washington — an unlimited wrongful death recovery state. They also carry liability insurance in excess of the Kansas damage limitation. Thus, respondents could not have justifiably relied on the Kansas limitation. See Restatement (Second) of Conflict of Laws § 6(2) (d) (1971).

[647] Before Judges MICHELS, KING and DREIER.

V. Vincent Velardo argued the cause for appellants (Velardo & Koprowski, attorneys; V. Vincent Velardo, of counsel; Joseph T. Delgado, on the brief).

David M. Paris argued the cause for respondent (Piro, Zinna and Cifelli, attorneys; Roseann Primerano, of counsel and on the brief).

The opinion of the court was delivered by MICHELS, P.J.A.D.

This is a wrongful death action instituted by plaintiff Patricia Jean Deemer, individually and as administratrix ad prosequendum of the Estate of her deceased husband, Jerry T. Deemer (Deemer). The action was instituted against defendants Silk City Textile Machinery Co. (Silk City) and Anthony Incanno (Incanno), to recover damages based on theories of strict liability, implied warranty and negligence.

It appears from the record submitted on this appeal that on August 14, 1980 Deemer suffered a crush-type injury to his left ankle while performing maintenance work on a shear-cut batcher manufactured by Silk City. Ultimately he died, and this action was instituted claiming that his death was causally related to the accident. The machine involved was sold by Silk City to decedent's employer, Collins & Aikman, at some time prior to November 30, 1977. Initially, the machine was installed at a Collins & Aikman plant located in Cowpens, South Carolina. Approximately three weeks prior to the decedent's accident, the machine was moved to the Collins & Aikman plant in Farmville, North Carolina, at which the accident occurred. Plaintiff claims that this machine was moved with the assistance of Silk City and its agents, servants, and/or employees. Silk City, on the other hand, contends that the actual moving of the machine was effectuated without any such assistance, but that after the machine was relocated Incanno, a Silk City [648] representative, provided instructions to Collins & Aikman personnel.

At the time of the sale of the machine, and at the time of the accident, Silk City was a New Jersey corporation doing business throughout the United States. The machine was manufactured in New Jersey. At the time of the accident, and at the time of his demise, decedent was a resident of North Carolina. The accident occurred in North Carolina, and the decedent filed a workers' compensation petition there as well. His wife, the plaintiff, continues to be a resident of North Carolina. It also appears that on January 1, 1983, Silk City effectuated a bulk sale of its assets to Krantz America, Inc., a German corporation whose principal place of business in the United States is located in North Carolina. At the time of this bulk sale, Silk City underwent a dissolution and terminated its corporate existence.

After filing an answer, defendants moved before the trial court for an order declaring that the law of North Carolina was the applicable law governing this case. The trial court denied the motion, concluding that since the machine was manufactured in New Jersey, there was "a most substantial connection between this case and the law of the State of New Jersey" and therefore the law of New Jersey applied. We granted leave to defendants to appeal from this interlocutory ruling and now reverse.

Historically, New Jersey courts resolved choice of law questions in tort cases in accordance with the doctrine of lex loci delicti, "rigidly applying the [substantive] law of the place where the wrong occurred." Van Dyke v. Bolves, 107 N.J. Super. 338, 342-343 (App.Div. 1969). See, e.g., Marshall v. Geo. M. Brewster & Son, Inc., 37 N.J. 176, 180 (1962); Harber v. Graham, 105 N.J.L. 213, 214-215 (E. & A. 1928). Although this traditional rule advanced certainty, uniformity and predictability in choice of law determinations, Daily v. Somberg, 28 N.J. 372, 380 (1958), it came to be recognized that the "mechanical application" of the lex loci delicti doctrine often produced an [649] unjust result. Mellk v. Sarahson, 49 N.J. 226, 228-229 (1967). Therefore, in a series of cases beginning with Mellk v. Sarahson, supra, and Pfau v. Trent Aluminum Company, 55 N.J. 511 (1970), New Jersey courts abandoned the traditional rule in favor of the governmental interest approach to choice of law questions. This approach requires a two-step analysis in resolving conflicts questions: the court determines first the governmental policies evidenced by the laws of each related jurisdiction and second the factual contacts of the parties with each related jurisdiction. Beckwith v. Bethlehem Steel, 185 N.J. Super. 50, 59-60 (Law Div. 1982); Wuerffel v. Westinghouse Corporation, 148 N.J. Super. 327, 333 (Law Div. 1977). See Rose v. Port of New York Authority, 61 N.J. 129, 139-140 (1972); Pfau v. Trent Aluminum Co., supra; Restatement 2d, Conflicts of Law §§ 6, 145, 146 (1971).

Applying the governmental interest test here, we are convinced that the trial court erred in concluding that the substantive law of New Jersey governed this matter. New Jersey has no interest in protecting the compensation rights of a non-domiciliary resident. Indeed, our Supreme Court's decision in Heavner v. Uniroyal, Inc., 63 N.J. 130 (1973) appears to evidence a policy of discouraging forum shopping where, as here, the contacts with the State are at best tenuous. In Heavner v. Uniroyal, Inc., supra, the purchaser of a truck instituted a product liability action against the manufacturer and retailer of a truck tire for personal injuries to himself and damages to his vehicle, and his wife sought a per quod recovery for loss of consortium, allegedly caused by a defect in the tire which resulted in a blowout and crash. Both plaintiffs were, at the time of the accident and thereafter, residents of North Carolina. Defendant Uniroyal was a New Jersey corporation engaged in the manufacture, sale and distribution of truck tires throughout the United States. Defendant Pullman, from whom plaintiff purchased the truck, was a Delaware corporation doing business throughout the United States. Plaintiff purchased the vehicle from Pullman in North Carolina [650] and the accident occurred in North Carolina. Our Supreme Court was called upon to determine whether New Jersey's four-year statute of limitations or North Carolina's three-year statute was applicable to that action. In the course of resolving this issue, the Court noted that the substantive law of North Carolina was to be applied to the action, stating:

Plaintiffs have shopped not only for a forum where their suit might not be barred by the statute of limitations, but also where the substantive law would seemingly be more favorable than that of North Carolina. The latter is borne out by the complaint's demand for judgment seeking damages "in accordance with the laws of the State of New Jersey." We gather that it is quite doubtful whether North Carolina law, at the time of the accident, recognized strict liability in tort to the extent New Jersey does since Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960), and its progeny, or allowed a cause of action to a wife for loss of consortium. We may add that we do not believe that New Jersey has any sufficient interest in this action to call for the application of its substantive law in preference to that of North Carolina under the governmental interest choice-of-law principles laid down in Mellk v. Sarahson, 49 N.J. 226 (1967), and Pfau v. Trent Aluminum Co., 55 N.J. 511 (1970). Our only possible interest is that Uniroyal, a national company, is incorporated here and that is not enough. Cf. Gore v. United States Steel Corp., 15 N.J. 301, 312 (1954), cert. den. 348 U.S. 861, 99 L.Ed. 678, 75 S.Ct. 84 (1954). All other interests are North Carolina's. Quite apart from choice-of-law considerations, it seems obvious that trial of the case would be much more convenient in North Carolina than in New Jersey. See Gore v. United States Steel Corp., supra; Semanishin v. Metropolitan Life Insurance Co., 46 N.J. 531 (1966). [63 N.J. at 134-135 n. 3].

In Heavner the Court did not examine the governmental policies evidenced by the laws of each jurisdiction, but rather stated merely that New Jersey did not possess "any sufficient interest" in the action and determined that North Carolina law was to be applied since the only contact with this state was that defendant was incorporated here.

Since here the product was both designed and manufactured in New Jersey, we are called upon to apply the full two-step analysis noted earlier. This process was not required in Heavner, where the only New Jersey contact was the chance incorporation of the defendant. Here there are competing policies that bear on this issue: (1) those relating to the defect-free design and manufacture of a product, and (2) those that [651] regulate the full and fair compensation of the injured party. The former would militate in favor of New Jersey law, the latter for North Carolina's. Whatever incidental benefits a liability judgment may contribute towards the correction of a defective design or the deterrence of wrongful conduct with respect to the future distribution of a product, the principal aim of a product liability or other personal injury claim is fairly to compensate the injured party. We therefore determine that that second of the two noted policies must control.

Here, as in Heavner, plaintiff attempted to find a forum "where the substantive law would seemingly be more favorable than that of North Carolina." The North Carolina General Assembly, by the enactment of its 1979 Products Liability Act, G.S. 99B-1 et seq., determined not to adopt strict liability in product liability cases. In view of this legislation, the Supreme Court of North Carolina, in Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504, 509-510 (1980), declined to adopt the doctrine of strict liability. North Carolina having chosen not to afford its own residents the protection of strict liability, there is no compelling reason for us to extend to such non-domiciliary plaintiffs the benefit of our decisional law. Furthermore, the effect of holding New Jersey law to be applicable in a matter of this kind is to subject any corporation conducting manufacturing activities in this state against whom a product liability claim is asserted to suit in New Jersey under New Jersey law. Such a holding would have the undesirable consequence of deterring the conduct of manufacturing operations in this state and would likely result in an unreasonable increase in litigation and thereby unduly burden our courts.

Moreover, to apply New Jersey law in the factual context here presented would seemingly frustrate the policies of North Carolina's workers' compensation laws. North Carolina apparently does not recognize strict liability in products actions and recognizes the applicability of a contributory negligence defense in products liability actions. See North Carolina G.S. [652] 99B-4. Under North Carolina's workers' compensation law, it appears that whenever an employer is found to have negligently contributed to an accident occasioned by the negligence of a third party, any damages awarded to the employee in a suit against the third party are to be reduced by the amount which the employer otherwise would have recovered by way of subrogation, and the employer has no claim against the recovery by the plaintiff. North Carolina G.S. 97-10.2(e). Thus, under North Carolina law, an employer who has contributed to an employee's injuries does not possess a lien for compensation payments made against the amount recovered by such an employee from a third-party in a tort action. To hold New Jersey law applicable here would undercut the North Carolina statutory scheme and undoubtedly disrupt its compensation rate structure. In these circumstances, New Jersey does not possess such a strong policy interest as to compel the application of its law rather than that of North Carolina.

Finally, we are satisfied that New Jersey's contacts with the dispute and with the parties are not sufficient to render New Jersey's interest in this matter paramount. Although the product allegedly causing the injuries was designed and manufactured in New Jersey and the manufacturer Silk City was once incorporated in this state, all the other incidents of the matter involve North Carolina. Both the plaintiff and her decedent were domiciled in North Carolina; the decedent filed a workers' compensation claim in North Carolina; the machine was delivered to South Carolina and was moved to another plant in North Carolina, and the company which bought the assets of Silk City is located in North Carolina. Thus, on balance, the respective contacts of the related jurisdictions dictate the application of North Carolina law.

Accordingly, the order under review is reversed. The matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. We do not retain jurisdiction.

[409] Lindquist & Vennum and Daryle L. Uphoff, Minneapolis, for appellants.

Palmer, Hood, Crassweller & McCarthy, Duluth, for respondent.

Heard and considered en banc.

[410] TODD, Justice.

Defendants appeal from an order of the trial court denying their motion to dismiss plaintiff's complaint for failure to state a cause of action because the law of Ontario, where plaintiff and defendants reside, has a guest statute requiring proof of gross negligence, which was not alleged. Defendants further appeal from the granting of plaintiff's motion to strike their affirmative defense that the law of Ontario should apply. The trial court certified the question as important and doubtful. We affirm.

Plaintiff and both defendants are residents of Thunder Bay (formerly Port Arthur), Ontario, Canada. On November 8, 1968, they left Thunder Bay for Duluth, Minnesota, to shop and attend a play. The car belonged to defendant Erma Saari, who drove the first part of the trip. At the United States Customs House at Pigeon River, Minnesota, defendant Judith Rudd took over the driving, and about 40 miles south of the border the car left the road and crashed into rock formations adjacent to the road, causing the injuries to plaintiff. Plaintiff was hospitalized at Duluth for approximately 1½ months and thereafter returned to her home in Thunder Bay.

Defendant Saari's automobile was garaged, registered, and insured in the Province of Ontario, Canada. Ontario has a guest statute, and if the law of Ontario is to be applied to this case, plaintiff would have to establish gross negligence in order to recover. Minnesota does not have a guest statute, and the rulings of the court would be correct if Minnesota law is to apply.

1. The field of "conflict of laws" in tort matters has undergone dramatic change in the last decade. Prior to that time, most courts were willing to accept the doctrine of "lex loci," which proved to be easy to administer since the happening of an accident in any particular forum established that the law of the place of the accident would apply. Criticism of this entrenched doctrine mounted from all sides. The issue was met head on in Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E. 2d 279, 95 A.L.R.2d 1 (1963). There the New York Court of Appeals, in an opinion by Mr. Justice (now Chief Justice) Fuld, held that where plaintiff was a New York resident and commenced a trip in the State of New York with the defendant, a New York resident, and was involved in an accident in Ontario, Canada, plaintiff was entitled to have her claim decided under the law of the State of New York. The legislature of New York had rejected the guest statute, which was the law of Ontario and the law of the place of the accident. The decision was premised on the doctrine that New York had the most significant contacts with the litigants and that consequently New York law should apply. The court further held that the law of Ontario, the place of the accident, should not apply, since Ontario had no significant contact with the litigants.

Application of Babcock to different fact situations has been confusing. The Babcock decision left open the question of the manner of determining each state's interest in a particular situation, and it did not discuss the issues of whether the relationship of the parties is established at the commencement of the trip and whether the relationship continues to be governed by the law of the state in which it was established or changes as state or international lines are crossed. This confusion is best illustrated in Dym v. Gordon, 16 N.Y. 2d 120, 262 N.Y.S.2d 463, 209 N.E.2d 792 (1965). In that case, plaintiffs were both New York residents and students in Colorado. They met in Colorado and the plaintiff was injured in an automobile accident in which she alleged the defendant was negligent. New York again had no guest statute, but Colorado did. The New York court in a divided opinion held that the Colorado law was applicable and placed emphasis on the fact that the parties met in Colorado and established their relationship as guest and host in Colorado. This seemed to introduce a new doctrine, namely, [411] "seat of the relationship," into the law. This doctrine was short-lived and was apparently put to rest in Macey v. Rozbicki, 18 N.Y.2d 289, 274 N.Y.S.2d 591, 221 N.E. 2d 380 (1966). In Macey the New York court shifted the emphasis away from the seat of the relationship and seemed to focus more on the common domicile of guest and host as determinative of the applicable law. In a concurring opinion Mr. Justice Keating more forcefully argued that the court "should no longer follow the decision in Dym v. Gordon [supra]." 18 N.Y.2d 298, 274 N.Y.S.2d 598, 221 N.E.2d 385.

Finally, the New York court was confronted with the exact factual situation we have in this case. In Kell v. Henderson, 47 Misc.2d 992, 263 N.Y.S.2d 647 (1965), affirmed, 26 A.D.2d 595, 270 N.Y.S.2d 552 (1966), the New York Supreme Court allowed the plaintiff to proceed under New York law, and the Appellate Division affirmed. In that case, the plaintiff, a minor child, in the company of the two defendants, a mother and son, set out from Ontario, Canada, to tour nearby New York. The plaintiff and the defendants were all residents of Ontario. The car was garaged in Ontario and insured in Ontario. While being driven in New York by the defendant son, the car went out of control and careened off the highway, striking a bridge and injuring Miss Kell. The defendants in that case argued that under the Babcock decision the most significant interests were in Ontario and not New York and therefore the plaintiff could not recover by reason of the Ontario guest statute. The New York Supreme Court, after pointing out that the state had significant interests by reason of its traffic vehicle regulations, its public policy regarding guest statutes, and the fact that its laws applied to residents and nonresidents equally, stated (47 Misc.2d 993, 263 N.Y.S.2d 649):

"The conflict-of-laws doctrine enunciated in Babcock (supra) recognizes that we no longer mechanically turn to the common-law rule of lex loci delicti in tort cases. The courts now have adopted a rule of choice of law in a conflict situation which looks to reason and justice in its selection of which law is to apply and which fits the needs of today's changing world where frequent travel is the rule, rather than the exception."

This case would seem to have completed the cycle for New York in moving fully away from the lex loci doctrine. However, in Arbuthnot v. Allbright, 35 A.D.2d 315, 316 N.Y.S.2d 391 (1970), the New York Supreme Court, Appellate Division, again sitting in the same division but with different justices, sought to distinguish Kell v. Henderson, supra, on a procedural issue which, in fact, was an additional basis for the decision which had been advanced in concurring opinions in both the lower court and the appellate division. Under the facts of Arbuthnot, which are indistinguishable from the facts in Kell, the court held that the Ontario law should apply. The New York Court of Appeals has apparently not yet acted on this conflict but hopefully will dispose of the conflicting cases and probably reverse the Arbuthnot case and support the Kell decision, not only because of the shallowness of the opinion in Arbuthnot, but also because of the substantial backing Kell has received from various law commentators and professors.^[1]

While New York was experiencing its difficulties in the changing field of conflict of laws, a fact situation arose in a case appealed to the Supreme Court of New Hampshire, which allowed its learned Mr. Chief Justice Kenison to enunciate a doctrine which has been followed by many courts throughout the country, including our own Minnesota court. In Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966), a husband and wife had left their home in New Hampshire to proceed to another part of New Hampshire for a visit and were to [412] return that evening. Part of their trip took them through Vermont, where the accident occurred. The plaintiff wife brought action in New Hampshire against her husband and sought an order of the court that the substantive law of New Hampshire governed the rights of the parties. New Hampshire had no guest statute and Vermont did. In a carefully reasoned opinion, Mr. Chief Justice Kenison traced the history and difficulty of the lex loci rule. He then proceeded to adopt five basic "choice-influencing considerations" to be applied to these cases. The basic premises for the considerations adopted by the court were first proposed by Professor Robert Leflar in his article, "Choice-Influencing Considerations in Conflicts Law, 41 N.Y. U.L.Rev. 267, 279, and briefly stated, the tests selected by the New Hampshire court are: (a) Predictability of results; (b) maintenance of interstate and international order; (c) simplification of the judicial task; (d) advancement of the forum's governmental interests; and (e) application of the better rule of law.

The court pointed out that the first three tests caused very few problems. Predictability of results can be overlooked since basically this test relates to consensual transactions where people should know in advance what law will govern their act. Obviously, no one plans to have an accident, and, except for the remote possibility of forum shopping, this test is of little import in an automobile accident case. As to the second consideration, the court found little trouble since under this heading no more is called for than that the court apply the law of no state which does not have substantial connection with the total facts and the particular issue being litigated. The third point, simplification of the judicial task, poses no problem since the courts are fully capable of administering the law of another forum if called upon to do so.

The court observed that in selecting the law of a particular case the last two considerations carry most weight. In the case before it, the court found adequate governmental interest in applying its state's law and concluded that the New Hampshire law was unquestionably the better law and should be applied.

2. During this same period, the law of the State of Minnesota has undergone a change. Minnesota had followed the doctrine of lex loci as recently as our decision in Phelps v. Benson, 252 Minn. 457, 90 N.W.2d 533 (1958), where we reiterated our adherence to that doctrine.

On April 1, 1966, our court handed down two decisions which indicated our determination to replace lex loci with a more rational choice-of-law methodology: Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66; and Kopp v. Rechtzigel, 273 Minn. 441, 141 N.W.2d 526. In these cases, we cited with approval Babcock v. Jackson, supra, and, in Balts, we quoted with approval language from McSwain v. McSwain, 420 Pa. 86, 93, 215 A.2d 677, 681 (1966):

"* * * Time found the rule [of lex loci delicti] increasingly criticized as a mechanical methodology, predicated on the out-moded `vested right' theory, and emphasizing certainty and predictability at the expense of other, frequently more relevant considerations." 273 Minn. 425, 142 N.W.2d 70.

In Balts, we applied a newly adopted doctrine which allowed an action by a parent against a child for tort and applied this Minnesota rule of law to Minnesota residents who were injured in an accident in Wisconsin, whose law did not permit such a recovery.

In the Kopp case, despite the existence of a guest statute in South Dakota, we applied Minnesota common-law rules of negligence and allowed recovery by a Minnesota plaintiff against a Minnesota defendant who was injured in a South Dakota accident where the trip originated in Minnesota and the parties intended to return to Minnesota.

We were next faced with the problem in Schneider v. Nichols, 280 Minn. 139, 158 [413] N.W.2d 254 (1968). In that case, the defendant had lived in Moorhead, Minnesota, but was at the time of the accident a resident of Fargo, North Dakota. He was employed by a national concern as a traveling sales representative from its branch office in Fargo. The employer provided liability insurance for defendant's vehicle in Fargo and the car was garaged in that city. The automobile in question carried Minnesota license plates and the defendant had a Minnesota driver's license. On the date of the accident, he met the plaintiff in a parking lot at Breckenridge, Minnesota. Plaintiff was a resident of the State of Minnesota. The parties had no preplanned itinerary, but during the course of the evening traveled on roads in both Minnesota and North Dakota, since the communities involved are situated on the border. The accident occurred in North Dakota. Plaintiff was hospitalized and treated at Breckenridge, and an action was commenced by the plaintiff in the Minnesota courts. Defendant claimed that no cause of action existed because North Dakota had a guest statute. Our court rejected this argument and applied Minnesota rules of commonlaw negligence. In so doing, our court quoted with approval the choice-influencing considerations laid down by Mr. Chief Justice Kenison in Clark v. Clark, supra, and also quoted his statement regarding guest statutes (280 Minn. 146, 158 N.W.2d 259):

"* * * No American state has newly adopted a guest statute for many years. Courts of states which did adopt them are today construing them much more narrowly, evidencing their dissatisfaction with them. * * * Though still on the books, they contradict the spirit of the times. * * * Unless other considerations demand it, we should not go out of our way to enforce such a law of another state as against the better law of our own state."

We next considered this problem in Bolgrean v. Stich, 293 Minn. 8, 196 N.W.2d 442 (1972). In that case, the defendant, a Minnesota resident, called the plaintiff, a former Minnesota resident who was then living in Fargo, for a date. Defendant's automobile was garaged, licensed, and insured in Minnesota. The defendant picked up the plaintiff and proceeded to a dance in South Dakota where the accident occurred. We allowed the plaintiff to commence the action in Minnesota, where she had returned to live at the time of the litigation, and rejected the application of the guest statutes of both North and South Dakota. In so doing, we indicated the Minnesota court would group the contacts of the different states with the controversy in order to find the "center of gravity." We again relied on the better-law consideration and said (293 Minn. 10, 196 N.W.2d 444):

"The fact that we believe that Minnesota has the better law reinforces our decision. The legislature of this state has shown its antipathy toward the guest statute by refusing to enact one."

Finally, in Allen v. Gannaway, 294 Minn. 1, 199 N.W.2d 424 (1972), we reaffirmed the position we adopted in Balts, Kopp, Schneider, and Bolgrean, and applied Minnesota law to a Nevada automobile accident involving residents of Minnesota and a Massachusetts resident who had been attending college in Minnesota.

3. The facts of this case now complete the cycle. The choice-influencing considerations proposed by Professor Leflar and set forth by Mr. Chief Justice Kenison in Clark v. Clark, supra, were adopted by our court in Schneider v. Nichols, supra, indicating our preference for the better-law approach and our rejection of the guest statute concept of various jurisdictions. We have come to the conclusion in this case that plaintiff should be allowed to proceed with her action under our common-law rules of negligence and should not be bound by the guest statute requirements of the Province of Ontario.

[414] 4. As we indicated earlier in this opinion, the New York case of Kell v. Henderson, supra, is on "all fours" with the facts of this case. Professor Leflar, whose original article provided the groundwork for the opinion of Mr. Chief Justice Kenison in Clark v. Clark, supra, which is the foundation of the approach our court has taken in these matters, had occasion to comment on the effect of Kell v. Henderson, supra, in an article entitled, "Conflicts Law: More on Choice-Influencing Considerations, 54 Calif.L.Rev. 1584. Professor Leflar set forth the fact situation of the Kell case. He then proceeded to analyze the decision in the light of these choice-influencing considerations. He pointed out that predictability was irrelevant since automobile accidents are seldom planned, and that, since the accident occurred in New York, that state was an appropriate jurisdiction in which to try the lawsuit. He further pointed out that neither international order or ease of judicial administration had much bearing on the case.

5. On the consideration of governmental interest, Professor Leflar found adequate support for the decision rendered by the New York court. In so doing, he rejected the concept of the practical interest of the state in the supervision and safety of its state highways since the rule in question, unlike rules of the road and definitions of negligence, does not bear upon vehicle operation as such. Instead, he pointed out that the factor to be considered is the relevant effect the New York rule has on the duty of host to guest and the danger of collusion between them to defraud the host's insurer. New York's interest in applying its own law rather than Ontario law on these issues, he found to be based primarily on its status as a justice-administering state. In that status, it is strongly concerned with seeing that persons who come into the New York courts to litigate controversies with substantial New York connections have these cases determined according to rules consistent with New York concepts of justice, or at least not inconsistent with them. That will be as true for nondomiciliary litigants as for domiciliaries. This interest will not manifest itself clearly if the out-of-state rule does not run contrary to some strong socio-legal policy of the forum, but it will become a major consideration if there is such a strong opposing local policy.

Professor Leflar then pointed out that this consideration leads to preference for what is regarded as the better rule of law, that New York has such a preference, and that it is a vigorous one. He concluded that the combination of the last two items, governmental interest and better rule of law, called for the application of New York law. His statements and reasoning apply equally to the facts of this case and lead to the conclusion that Minnesota should apply its better rule of law and should allow plaintiff to proceed with her action.^[2]

6. Strong support for the better-rule-of-law concept appears in an article by Professor Albert A. Ehrenzweig, "False Conflicts" and the "Better Rule": Threat and Promise in Multistate Tort Law, 53 Va.L.Rev. 847, 853, in which he wrote:

"Express recognition of the forum's right and duty to apply its own better rule as such is an ancient tradition which apparently succumbed to the 19th century's internationalist conceptualism. We need only remember the priority given by early statutists to the statuta favorabilia of the forum against foreign statuta odiosa, or Master Aldricus' choice of the custom `potior et utilior,' or Byzantium's philanthropoteron. The widespread disregard of foreign Sunday laws, fellow-servant rules, and married women's incapacities, as well as statutes of [415] frauds, and limitations on wrongful death damages, may serve as modern examples.

"Now, we shall, of course, not `ask the judge simply to express a preference between two rules.' This would, indeed, `abolish our centuries-old subject.' But we should face the `fact of life' that judges, our best judges, often take advantage of the `looseness in the joints of the [choice-of-law] apparatus,' or employ `manipulative techniques such as characterization and renvoi,' and all-purpose tools such as the `most significant relationship,' in order to substitute a better foreign rule for much `that is archiac and foolish' in their own law.

"Thus one cannot easily suppress the suspicion, or should we say the hope, that it was the application of a `better-rule' approach rather than the invoked non-rule of the `most significant relationship' that led the New York Court of Appeals in one case to permit `a substantial recovery' for a crash-death under Pennsylvania law rather than to limit damages under Maryland law, and in another case to allow a direct action against a liability insurer under Puerto Rico law. And may we not suspect, or should we say hope, that it was preference for the better rule rather than the professed belief in the lex contractus of a spurious `center of gravity' that led the Wisconsin Supreme Court to apply to a Wisconsin automobile accident of Wisconsin domiciliaries a Minnesota rule more favorable to the victim than forum law? Or should we seriously assume that the court would have found the `center of gravity' in Minnesota if the better rule had been its own? And would the English Chancery have applied as `substantive' rather than `procedural' the German law regarding the survival presumption in a common disaster if English law had adopted the `better' German rule of simultaneous death rather than the obsolute presumption of the elder's survival?

"Whether or not general express recognition of the `better-rule' approach can be justified at present, we must at least acknowledge the validity of the proposition advanced by Currie that transient (`disinterested') third states, having no incentive to follow the `stay-at-home' trend, are likely to choose what they consider the better of two foreign rules. Moreover, admiralty courts in their more forthright manner have sometimes acknowledged their bias toward a `better rule.' And may we not ultimately in part explain the great willingness of American courts to permit parties to choose their own law in terms of a simi-law better-rule approach?

"Although the `better-rule' principle is not generally capable of replacing conflicts rules, I see little justification within the limits set by settled law for the prevailing horror against the recognition of that principle as one of many determining the growth of conflicts law. The very growth of common-law rules is based on the judge's choice between competing principles, choices expressed in the process of overruling or distinguishing earlier judicial pronouncements. In purely domestic cases open admission of this technique is often hampered by justified respect for `certainty' and the parties' expectations, a respect which also accounts, of course, for both legislative and judicial reluctance to act with retroactive effect. In cases involving foreign elements, however, this consideration often should be, and generally is, less relevant, and the path is open for the courageous judge to prepare the ground for a domestic reform by open preference for `better' foreign solutions."

In Schneider v. Nichols, 280 Minn. 139, 144, 158 N.W.2d 254, 257, we quoted with approval language from Wilcox v. Wilcox, 26 Wis.2d 617, 633, 133 N.W.2d 408, 416 (1965), an opinion written by Mr. Justice Heffernan. Plaintiff, in support of her position, relies on this case and cites two other Wisconsin cases, Heath v. Zellmer, 35 Wis. [416] 2d 578, 151 N.W.2d 664 (1967), and Zelinger v. State Sand & Gravel Co., 38 Wis.2d 98, 156 N.W.2d 466 (1968).

Defendants seek to distinguish these cases by pointing out that in each of them there was an interested Wisconsin party in the litigation. However, in Conklin v. Horner, 38 Wis.2d 468, 157 N.W.2d 579 (1968), the Wisconsin court was confronted with a fact situation again exactly on all fours with our situation. There the court, speaking through Mr. Justice Heffernan, adopted the better-rule approach which we have adopted here and, in a well-reasoned opinion, arrived at the same conclusion that this court has. In the Wisconsin case, the litigants were all residents of the State of Illinois; the automobile in question was licensed and garaged in Illinois; the trip originated in Illinois with the intent and purpose to return to Illinois; and the insurance policy was issued in the State of Illinois. Illinois has a guest statute; Wisconsin does not. The court in that case first considered the problem of labeling any procedure in determining rules of law to be applied, saying (38 Wis.2d 473, 157 N.W.2d 581):

"The defendants' claim is based upon our decision in Wilcox v. Wilcox (1965), 26 Wis.2d 617, 133 N.W.2d 408, where we abandoned the choice-of-law rule of lex loci delicti and adopted in its stead a more flexible methodology based upon the qualitative analysis of the contacts that one or more jurisdictions might have with the relevant facts. We adopted the general approach of Babcock v. Jackson (1963), 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1, and the basic principle of Tentative Draft No. 9, Restatement, Conflicts of Laws 2d, which may be denominated as the `center of gravity,' `grouping of contacts,' `dominant interest,' `interest oriented,' or `interest analysis' approach. Zelinger v. State Sand and Gravel Co., [38 Wis. 2d] 98, 156 N.W.2d 466 [1968]. We emphasized that what we adopted was not a rule, but a method of analysis that permitted dissection of the jural bundle constituting a tort and its environment to determine what elements therein were relevant to a reasonable choice of law.

"When the Wilcox Case is so viewed, it is apparent that we cannot conclude that, when one set of facts leads logically to the law of the forum, the reverse, or the apparent reverse, of these facts will lead to the opposite conclusion." (Italics supplied.)

We, too, adopt this concept that what the court is considering is a methodology and not a rule.

The Wisconsin court then proceeded to adopt the choice-influencing considerations of Professor Leflar as expounded by Mr. Chief Justice Kenison in Clark v. Clark, supra. The court considered the various rules in the same manner that Professor Leflar applied them to Kell v. Henderson, supra. It should be noted that the Wisconsin court gave much more credence to the state interest in its highways and state regulations than Professor Leflar would ascribe. Following this reasoning process, the Wisconsin court concluded that the Wisconsin law was the better law to apply under the circumstances.

We find then that in Conklin the Wisconsin court, premising its choice-of-law methodology on the factors initially propagated by Professor Leflar and Mr. Chief Justice Kenison of New Hamphire, has resolved substantially the same fact situation as now appears before us by applying the common-law liability of the forum and place of the accident rather than the guest statute of the residence of the parties. See, also, Kell v. Henderson, supra. Since our methodology owes a similar debt to Professor Leflar and Mr. Chief Justice Kenison, we find their reasoning relevant and persuasive.

7. We have already noted the relative unimportance of predictability of results to tort actions. Similarly, the simplification of the judicial task need not concern [417] us to any great extent since we have no doubt our judicial system could in the appropriate case apply the guest statute rule of gross negligence as readily as our common-law rule. Interstate and international relations are maintained without harm where, as here, the forum state has a substantial connection with the facts and issues involved. This requirement is amply met by the fact that the accident occurred in Minnesota, as well as by the fact that plaintiff was hospitalized for well over a month in the state.

The compelling factors in this case are the advancement of the forum's governmental interests and the application of the better law. While there may be more deterrent effect in our common-law rule of liability as opposed to the guest statute requirement of gross negligence, the main governmental interest involved is that of any "justice-administering state." Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif.L.Rev. 1584, 1594. In that posture, we are concerned that our courts not be called upon to determine issues under rules which, however, accepted they may be in other states, are inconsistent with our own concept of fairness and equity. We might also note that persons injured in automobile accidents occurring within our borders can reasonably be expected to require treatment in our medical facilities, both public and private. In the instant case, plaintiff incurred medical bills in a Duluth hospital which have already been paid, but we are loath to place weight on the individual case for fear it might offer even minor incentives to "hospital shop" or to create litigation-directed pressures on the payment of debts to medical facilities. Suffice it to say that we recognize that medical costs are likely to be incurred with a consequent governmental interest that injured persons not be denied recovery on the basis of doctrines foreign to Minnesota.

In our search for the better rule, we are firmly convinced of the superiority of the common-law rule of liability to that of the Ontario guest statute. We can find little reason for the strict limitation of a host's liability to his guest beyond the fear of collusive suits and the vague disapproval of a guest "biting the hand that feeds him." Neither rationale is persuasive. We are convinced the judicial system can uncover collusive suits without such overinclusive rules, and we do not find any discomfort in the prospect of a guest suing his host for injuries suffered through the host's simple negligence.

Accordingly, we hold that Minnesota law should be applied to this lawsuit.

Affirmed.

PETERSON, Justice (dissenting).

The "center-of-gravity-of-the contacts" theory of conflict of laws has been adopted in this state, and we have applied it in situations where an automobile trip started and was intended to terminate in this state, where the host-guest relationship was formed in this state, or where the place of registration or garaging of the automobile was in this state. Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66 (1966); Kopp v. Rechtzigel, 273 Minn. 441, 141 N.W.2d 526 (1966); Schneider v. Nichols, 280 Minn. 139, 158 N.W.2d 254 (1968); Bolgrean v. Stich, 293 Minn. 8, 196 N.W.2d 442 (1972); Allen v. Gannaway, 294 Minn. 1, 199 N.W. 2d 424 (1972). Until today, however, we have not considered the mere happening of an automobile accident in this state a sufficient contact with the forum to establish the center of gravity here. In my view, the center of gravity is in Ontario, not Minnesota.

The "choice-influencing factor" in the majority opinion is simply that Minnesota law is "better law" because, unlike Ontario law, this state has no guest statute. Notwithstanding our undoubted preference for this forum's standard of liability, I am not persuaded that decision should turn on that factor alone. We may assume that these Canadian citizens have concurred in the [418] rule of law of their own government as just, so the law of this American forum is not for them the "better" standard of justice. The litigation, indeed, was first initiated by plaintiff in the courts of Ontario and was later commenced in Minnesota as an act of forum shopping.

Our own cases, of course, do not compel such a decision. Two cases from other jurisdictions that are "on all fours" are not persuasive. The New York case of Kell v. Henderson, 47 Misc.2d 992, 263 N.Y.S. 2d 647 (1965), affirmed, 26 A.D.2d 595, 270 N.Y.S.2d 552 (1966), is not the decision of that state's highest court and, in addition, is at odds with the later case of Arbuthnot v. Allbright, 35 A.D.2d 315, 316 N.Y.S.2d 391 (1970). The Wisconsin case of Conklin v. Horner, 38 Wis.2d 468, 157 N.W.2d 579 (1968), is a final expression of its highest court, based upon a well-written majority opinion of Mr. Justice Heffernan. I nevertheless am more persuaded by the dissenting opinion of two justices. Mr. Chief Justice Hallows, in dissent, appropriately observed that the so-called "methodology of analysis" is really little more than a mechanical application of the law of the forum. As he wrote (38 Wis.2d 491, 157 N.W.2d 590): "If we are going to be consistent only in applying the law of the forum, then we are merely giving lip service to the new `significant contacts' rule."

OTIS, J., took no part in the consideration or decision of this case.

[1] Rosenberg & Trautman, Two Views on Kell v. Henderson, 67 Col.L.Rev. 459; Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif.L. Rev. 1584, 1593 to 1595.

[2] Other writers, in commenting on Kell v. Henderson, 47 Misc.2d 992, 263 N.Y.S.2d 647 (1965), affirmed, 26 A.D.2d 595, 270 N.Y.S.2d 552 (1966), came to the same conclusion. Rosenberg & Trautman, Two Views on Kell v. Henderson, 67 Col.L.Rev. 459.

[666] Fletcher Dahl & Riedy, John F. Fletcher, St. Cloud, Fitch & Johnson, Minneapolis, for appellant-respondent.

Cousineau, McGuire, Shaughnessy & Anderson and Robert J. McGuire, Minneapolis, for Consolidated Freightways.

Thompson, Hessian, Fletcher, McKasy & Soderberg and George Roehrdanz, Minneapolis, for Spector Freight System Inc.

Heard before SHERAN, C. J., and PETERSON, KELLY, and YETKA, JJ., and considered and decided by the court.

YETKA, Justice.

Plaintiff brought an action to recover for personal injuries sustained in a three-truck accident in the State of Indiana allegedly due to the negligence of the defendants, Consolidated Freightways Corporation of Delaware and Spector Freight System, Inc. Trial before a jury was commenced in Hennepin County District Court on November 20, 1972. Prior to submission of the case to the jury, the court ruled, as a matter of law, that the Indiana rule of contributory negligence would apply rather than the Minnesota comparative negligence provision, Minn.St. 604.01. However, at plaintiff's request the case was submitted to the jury in the form of special interrogatories requiring percentage apportionment of negligence attributed to each party. The jury returned a verdict finding defendants 90 percent negligent and plaintiff 10 percent negligent. In its conclusions of law, dated December 4, 1972, the court denied recovery to plaintiff based on the aforesaid ruling that the Indiana law of contributory negligence applied to this case. Plaintiff appeals from the judgment. Consolidated Freightways and Spector Freight appeal from an order of the district court denying their motions to amend or set aside certain answers to special interrogatories. The same order dismissed without prejudice motions of the defendants for judgment n. o. v. or a new trial in the event this court determines that comparative negligence applies.

Affirmed in part, reversed in part, and remanded.

The case at bar arises from a collision involving three semi-tractor-trailer units which occurred on the Indiana tollway.

One vehicle involved in this collision was owned by defendant Consolidated Freightways and driven by an Indiana resident. His codriver was a resident of Ohio. The unit was garaged and maintained in Ohio, but the tractor was licensed in Delaware. Neither the tractor nor the trailer was licensed to operate in Minnesota. [667] At the time of the accident this unit was making a run from Akron, Ohio, to Chicago, Illinois, and was to return to Akron.

A second vehicle involved in the collision was leased to defendant Spector Freight System, Inc. This unit was owned and operated by an Ohio resident and maintained and garaged in Ohio. At the time of the accident, this vehicle was delivering a shipment from Cleveland, Ohio, to Kenosha, Wisconsin.

Both Consolidated and Spector are foreign corporations to the State of Minnesota. However, both operate in interstate commerce and are licensed to do business in Minnesota.

The third vehicle involved in the collision was owned by Northern Cooperative, Inc., of Wadena, Minnesota, and driven by plaintiff. Plaintiff and his codriver had left Wadena to deliver commodities to Toledo and Columbus, Ohio. Thereafter they had picked up a load in Barberton, Ohio, and were en route back to Wadena when the collision took place. Plaintiff is a lifelong resident of Minnesota and currently resides in Wadena. His codriver is also a Minnesota resident. The semi unit belonging to plaintiff's employer is licensed, maintained, garaged, and registered in Minnesota.

The collision in question occurred at approximately 5:05 a. m., November 20, 1964, in the westbound side of the Indiana tollway, near the city of Elkhart, Indiana.

The Consolidated vehicle had stopped behind a line of traffic in the right-hand lane due to a stoppage of some sort, resulting from causes which do not appear on the record. The Consolidated driver testified that his warning lights and four-way flashers were in operation at that time. The evidence as to whether this driver had set out flares or fuses is disputed.

The weather conditions at the time of the accident were disputed.

The Spector vehicle then approached the stopped Consolidated unit from the rear and came to a stop directly behind said vehicle.

Plaintiff had been following the same route and traveling in the same lane as defendants' trucks. As he approached them from the rear at a speed of 45 to 50 miles per hour, plaintiff began to pull out into the left-hand lane to pass. He struck the rear of the Spector vehicle, driving it into the rear of the Consolidated unit.

Plaintiff was severely injured and received initial medical treatment at a hospital in Elkhart, Indiana. He was then transferred to a hospital in Wadena. Plaintiff has also spent time in a Fargo, North Dakota, hospital in order to receive medical treatment for his injuries.

The issues on this appeal are:

1. Does the Indiana law of contributory negligence or the Minnesota comparative negligence provision apply to the case at bar?

2. Does the evidence support the verdict?

1. Plaintiff places principal reliance on this court's decision in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973). He urges that the considerations set forth in that opinion are applicable to the case at bar, both in terms of advancement of the forum's legitimate governmental interest and application of the better rule of law.

Defendants take the view that the facts relevant to this choice-of-law question mandate application of Indiana law in this case. They allege that the contacts with Minnesota are less significant than the contacts with Indiana. They further contend that a "better law" analysis is not applicable to comparative versus contributory negligence, and in any case, such analysis is subservient to the overriding interests of Indiana. Defendants also take the view that there must be a "consistent application of one law" and that plaintiff was forum shopping.

[668] In Milkovich v. Saari, supra, this court discussed in detail the recent changes in the choice-of-law rules of this and other jurisdictions. With reference to tort cases it was pointed out that the traditional rule of lex loci delecti has been replaced by the more rational choice-of-law methodology first enunciated by Professor Robert Leflar in his article entitled Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267, 279. Adoption of this methodology by this court in Milkovich has in effect replaced the traditional choice-of-law rules with a flexible approach which takes into account policy as well as factual considerations in arriving at a choice of law in a given situation.

As pointed out in Milkovich, only the last two items of Professor Leflar's five-point methodology are relevant to tort cases. These two considerations are: (1) Advancement of the forum's governmental interests and (2) application of the better rule of law.

Advancement of the forum's governmental interests contemplates application both in terms of factual contacts with the forum and in terms of the state's policy considerations relevant to its choice of law.

In Milkovich the only facts linking the forum to the accident were that the accident occurred in this state and that the plaintiff received medical care in this state. Yet, these facts, in concert with policy considerations, were held to create governmental interests on the part of the forum sufficient to support application of Minnesota law, even though the parties were from Ontario and the automobile involved in the accident was, in all respects, linked exclusively to Ontario.

The factual contacts creating a Minnesota interest in the instant case appear much stronger than those factual contacts present in Milkovich. Here, plaintiff is a lifelong resident of Minnesota and sustained his injuries in the course of his employment as a truckdriver for a Minnesota corporation. The vehicle which he was driving was owned by this Minnesota employer, and was licensed, registered, garaged, maintained, and insured in Minnesota. Plaintiff had a Minnesota driver's license. The excursion which had brought plaintiff to Indiana originated in Minnesota and was to terminate in Minnesota (although the load plaintiff was hauling was to be delivered to Fargo, North Dakota). Plaintiff has received and continues to receive medical care in Minnesota for the injuries sustained in the accident. He currently resides in Minnesota, saddled with crippling physical disabilities arising from the collision. Thus, the economic impact of these injuries and of subsequent litigation will be felt by Minnesota residents. In addition, both defendant corporations, although foreign to Minnesota, are licensed to do business in this state, and presumably exercise this privilege. Minnesota therefore has a clear governmental interest in the outcome of plaintiff's case.

The State of Indiana, on the other hand, has a much less substantial governmental interest. The accident in question occurred in Indiana and plaintiff received initial medical attention in that state. The fact that one of Consolidated's drivers was an Indiana resident is irrelevant since this individual is not a party to the litigation and is therefore not affected by the outcome.

Defendants advance the rather ingenious argument that if the reasoning of Milkovich is applied to the case at bar, then, "obviously, Indiana law would have to apply." However, Milkovich cannot be read as holding that, if that action had been brought in Ontario, an Ontario court could not have applied the Ontario guest statute.

Once jurisdiction attaches, the forum may, subject to the rather minimal due process standards, apply its own choice-of-law rules to determine what law governs the case. Crider v. Zurich Ins. Co., 380 U.S. 39, 85 S.Ct. 769, 13 L.Ed.2d 641 (1965); Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930). See, also, Professor Leflar's article entitled States' Rights in Conflict of Laws, 19 Ark.L.Rev. 142.

[669] Professor Leflar also states in Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267, 270, 292:

"* * * The law of the forum F, on choice of law, is the law that courts of forum F will follow.

* * * * * *

"* * * It is not at all unusual for one state to discover that it has such [governmental] interests in a set of facts though another state's courts would say otherwise."

In the instant case, had the litigation been brought in Indiana, it is possible that courts of that state could cite Milkovich as supporting authority for application of Indiana law. But it is incorrect to cite Milkovich as standing for the proposition that, under identical facts, the Minnesota Supreme Court would apply the law of the site of the accident. Milkovich, by adopting the Leflar methodology, has announced that choice-of-law questions in this state will be decided under flexible standards, free from the traditional rules that demanded resolution of such questions on a pure "contacts analysis." Rather, the Leflar methodology demands that choice-of-law issues be decided, not only upon "contacts," but also on policy considerations.

While we hold that Minnesota's governmental interest in this case is sufficient to apply the Minnesota comparative negligence statute rather than the contributory negligence law of the State of Indiana so that we need not decide the case under the better-law rule, we feel compelled to point out that the jury's findings of only 10 percent negligence on the part of plaintiff and 90 percent on the part of defendants, which verdict would compel judgment for defendants under the law of Indiana, does little to convince us Indiana has the better law. Despite the fact the jury found plaintiff's negligence to be relatively slight, the Indiana rule would leave him to bear the entire burden of his severe injuries. It is within the ambit of this court's power to find such a result contrary to basic state policy. This court as early as 1938, in commenting on the contributory negligence doctrine, then the law in Minnesota, said:

"No one can appreciate more than we the hardship of depriving plaintiff of his verdict and of all right to collect damages from defendant; but the rule of contributory negligence, through no fault of ours, remains in our law and gives us no alternative other than to hold that defendant is entitled to judgment notwithstanding the verdict. It would be hard to imagine a case more illustrative of the truth that in operation the rule of comparative negligence would serve justice more faithfully than that of contributory negligence." Haeg v. Sprague, Warner & Co. Inc., 202 Minn. 425, 429, 281 N.W. 261, 263 (1938).

Defendants argue that plaintiff was forum shopping. Suffice it to say that the courts of this state are open to those residents and nonresidents alike who properly invoke, within constitutional limitations, the jurisdiction of these courts. In the case at bar, plaintiff is a Minnesota resident who is currently suffering from extensive and severe injuries. It would be at least plausible to presume that Minnesota courts would be plaintiff's logical choice. Further, it is noteworthy that plaintiff did not first bring his action in another state and then later bring suit in this state.

2. The district court properly denied defendants' motions to amend certain answers given by the jury to interrogatories. There is ample evidence in the record to support the jury's verdict.

3. Those portions of the alternative motions seeking judgment n. o. v. or a new trial, which the trial court dismissed without prejudice, do not appear to have significant merit once the sufficiency of the evidence has been determined. However, since the trial court has not ruled on whether a new trial should be granted on the ground of misconduct of counsel, or on the ground that the verdict was excessive, the case must be remanded to the district court for determinations on renewal of the [670] motions on these two issues alone since we find no error by the trial court on any rulings made heretofore except on the issue, discussed previously, of whether Minnesota or Indiana law should be applied.

Since the accident occurred in 1964, however, and the action was brought in 1969, plaintiff is entitled to a speedy determination of this matter. We remand to the trial court for consideration of the motions for a new trial only on condition defendants renew their motions and file a bond in the amount of the verdict in this case plus interest from the date judgment was initially entered in the district court to the day of the issuance of this opinion. If the bond is not filed within 15 days of the issuance of this opinion, judgment for plaintiff shall be entered.

Affirmed in part, reversed in part, and remanded.

PETERSON, Justice (concurring specially).

I concur in the result, recognizing that the so-called methodology of analysis adopted and applied in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973), is elastic enough to support today's decision reversing the contrary conclusions of the trial court.

[1542] [1543] [1544] David W. McKenna, Tracey A. Sykes, Nancy J. Nelson and Robins, Kaplan, Miller & Ciresi, Minneapolis, Minn., for plaintiff.

Duane Eugene Arndt and Arndt & Benton, Minneapolis, Minn., for defendants.

ORDER

DOTY, District Judge.

This matter is before the court on plaintiff's motion to amend her complaint and defendants' motion for summary judgment. Based on a review of the file, record and proceedings herein, the court grants plaintiff's motion to amend, and grants in part and denies in part defendants' motion for summary judgment.

BACKGROUND

Plaintiff Nancy C. Schiele ("Schiele") brings the present action against defendants H. Charles Vogel, Jr. ("Vogel"), Harvey Vogel Manufacturing Co. and Charles Vogel Manufacturing Co., Inc. (referred to collectively as defendants). Schiele is a resident of Minnesota. Charles Vogel Manufacturing Co., Inc., is a Wisconsin corporation with its principal place of business in Prescott, Wisconsin (the Wisconsin facility). Harvey Vogel Manufacturing Co., a Minnesota corporation, has its principal place of business in Minnesota (the Minnesota facility). Vogel is chairman of the board of the Minnesota facility, and chairman of the board and president of the Wisconsin facility. He is also the sole shareholder of both companies. Vogel lives in Wisconsin, but commutes to work every day at the Minnesota facility.

In November 1987, Schiele was hired to work as a temporary accounting clerk at the Minnesota facility. At the end of December, she was transferred to the Wisconsin facility. Schiele continued to work at the Wisconsin facility until September 26, 1988, when she quit her job, claiming that the working conditions were intolerable because Vogel repeatedly subjected her to unwelcome physical contact and verbal communications of an intimidating, abusive [1545] and sexual nature.^[1] Although on several occasions Schiele complained to her immediate supervisor, Wayne Hald, about Vogel's conduct, explaining that she found Vogel's language and conduct offensive, demeaning and unacceptable, she claims that Hald merely suggested that she look for another job. Despite her complaints to Hald, Schiele claims that the corporate defendants were either unwilling or unable to influence or control Vogel's behavior because Vogel let it be known that he would fire anyone who dared to complain about his conduct or the manner in which he ran his companies. (Vogel Dep. pp. 95-96, 100-01).

Schiele claims that she did not bring her objections directly to Vogel's attention until late September 1988, because she was afraid that he might retaliate against her or terminate her employment. When Schiele finally told Vogel that she objected to the manner in which he treated and spoke to her, she contends that he became extremely angry and told her that if she did not like his treatment, she could leave. She claims that his explosive reaction caused her to fear for her physical safety and she never returned to work after the confrontation. Schiele therefore contends that she was constructively discharged. Schiele further claims that as a result of defendants' abusive and hostile conduct, she has suffered and continues to suffer severe emotional and mental distress in addition to other damages.

Less than two days after Schiele left defendants' employ, Vogel called a meeting of her former co-workers. Schiele alleges that at that meeting, Vogel explained that Schiele had quit her job and he asked the eight or nine employees in attendance if any of them were her friends. After some of the employees raised their hands, Vogel told them that Schiele was "a thief due to the fact that she steals from the company." Vogel then asked employees again whether any of them were Schiele's friend and only one employee raised her hand.

Schiele finally alleges that when she was first employed at the Wisconsin facility, she held the position of office manager and was paid $22,000.00. In early 1988 she contends that she was relieved of those duties and replaced by a man who performed the same duties but was paid $16,000 more than Schiele had been paid.

Based on the foregoing, Schiele asserts claims of hostile environment sexual harassment pursuant to Title VII, claims of sexual harassment and discrimination under the Minnesota Human Rights Act, a claim of wage discrimination under Minn. Stat. § 181.67, and state law claims of defamation, intentional and negligent infliction of emotional distress.^[2] Defendants move for summary judgment on all of Schiele's claims.

DISCUSSION

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which requires that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Stated in the negative, summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. In order for the moving party to prevail, it must demonstrate to the court that "there is no genuine [1546] issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). A fact is material only when its resolution affects the outcome of the case. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. On a motion for summary judgment, all evidence and inferences are to be viewed in a light most favorable to the nonmoving party. Id. at 250, 106 S.Ct. at 2511. The nonmoving party, however, may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Moreover, if a plaintiff cannot support each essential element of its claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. at 2552. With this standard at hand, the court will consider each of Schiele's claims.

I. Schiele's Title VII Claim

Defendants move for summary judgment on Schiele's sexual harassment claim under Title VII. Defendants first argue that her claim should be dismissed as untimely to the extent that it involves allegations concerning the Minnesota facility. On November 16, 1988, Schiele filed a discrimination charge with the Milwaukee District Office of the United States Equal Employment Opportunity Commission ("EEOC"). On November 17, 1988, the EEOC transmitted the charge to the Wisconsin Equal Rights Division, Department of Industry, Labor and Human Relations. It is undisputed that Schiele identified only Vogel and the Wisconsin facility as respondents in her charge. In her complaint, however, Schiele alleges that she began her employment with defendants at the Minnesota facility in November 1987 and was transferred to the Wisconsin facility on December 29, 1987. She also alleges three incidents of sexual harassment while she was employed at the Minnesota facility. None of those incidents, however, were set forth in her administrative charge and they all occurred more than 180 days before she filed her charge. Defendants thus contends that Schiele's claims against the Minnesota facility should be dismissed as untimely.

Schiele does not dispute the fact that her EEOC charge failed to identify the Minnesota facility as a respondent, but argues that her claim should be permitted because the Minnesota facility had both notice of her charge and an adequate opportunity to participate in conciliation. Under Title VII, an individual who believes that the act has been violated must file a charge with the EEOC within 180 days of the unlawful employment action.^[3] A claimant who fails to name a party in the administrative charge generally may not sue that party under Title VII. See, e.g., Eggleston v. Chicago Journeymen Plumbers Local Union No. 130, U.A., 657 F.2d 890, 905 (7th Cir.1981) (citations omitted). That requirement, however, is not jurisdictional and an unnamed party may still be subject to suit if the:

unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance, the charge is sufficient to confer jurisdiction over that party.

Id. (citations omitted); Greenwood v. Ross, 778 F.2d 448, 450-51 (8th Cir.1985) ("A suit is not barred `where there is sufficient identity of interest between the respondent and the defendant to satisfy the intention of Title VII that the defendant have notice of the charge and the EEOC have an opportunity to attempt conciliation.'" quoting Romero v. Union Pac. R.R., 615 F.2d 1303, 1311 (10th Cir.1980)).

In Arenas v. Ladish Co., the district court permitted suit against plaintiff's supervisor [1547] under circumstances similar to those in the present case. 619 F.Supp. 1304, 1308 (E.D. Wis.1985), dismissed on other grounds, 1986 WL 617 (E.D.Wis. Jan. 22, 1986). Arenas filed a charge with the EEOC alleging sexual discrimination and harassment, but named only the company as the discriminating party, failing to name her supervisor as respondent. Id. at 1307. Following the analysis set forth in Eggleston, the court first determined that the supervisor had adequate notice of the charge because he was named as the perpetrator of several incidents of alleged discrimination and personally testified before the EEOC. Id. at 1308 (citing Eggleston, 657 F.2d at 905). The court further concluded that the supervisor had an adequate opportunity to conciliate because the employer had such an opportunity and the supervisor's "conciliation interests were commensurate with [his employer's]." Id. The court thus permitted Arenas to bring suit against her supervisor. Id.

Relying on Arenas, Schiele argues that she provided the Minnesota facility with adequate notice of her charge by naming Vogel, the corporation's chairman of the board and sole shareholder, as the perpetrator of the unlawful conduct. See Eggleston, 657 F.2d at 907 ("if a party has a close relationship with a named respondent ... and has actual notice of the EEOC charge [that party] `should not be heard to cry "foul" when later made a defendant'" (citations omitted)). She further alleges that the attorneys for the Minnesota facility are the same attorneys who represented both Vogel and the Wisconsin facility in the proceedings before the EEOC. Thus, she argues that the Minnesota facility, through the involvement of its attorneys and Vogel, as its sole stockholder and chairman of the board, had an adequate opportunity to conciliate with the EEOC. It is also undisputed that Schiele named Vogel and the Wisconsin facility in her charge and that both had an adequate opportunity to conciliate with the EEOC. Based on the foregoing, the court finds that Schiele raises a material fact dispute about whether the Minnesota facility received adequate notice or had an opportunity to conciliate.

Schiele also argues that the Minnesota and Wisconsin facilities should be considered a single employer for purposes of the charge filing provision of Title VII. Some courts permit two corporate entities to be deemed a single employer for purposes of permitting an unnamed defendant to be sued. Sedlacek v. Hach, 752 F.2d 333, 335-36 (8th Cir.1985); Escamilla v. Mosher Steel Co., 386 F.Supp. 101, 105 (S.D.Tex.1975) (parent corporation had or should have had notice of charge and opportunity to conciliate through its wholly owned subsidiary). In Sedlacek, the Eighth Circuit determined that a partnership and a corporation constituted a single employer for purposes of Title VII's notice and conciliation requirements because the two partners in the partnership were also the primary owners and managers of the corporation. 752 F.2d at 336. Thus, the Eighth Circuit concluded that naming the corporation in the charge was also sufficient to provide the partnership with notice because the two partners, as owners and managers of the corporation, actually received notice of the charge "and either knew or should have known that the interrelation between [the corporation and partnership] would cause the [partnership] to be implicated as well." Id.

Courts examine various factors to determine whether two companies constitute a single employer, including:

1. Interrelation of operations,

2. Common management,

3. Centralized control of labor relations, and

4. Common ownership or financial control.

EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977) (citing Radio Union v. Broadcast Serv., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965)) (adopting NLRB's single employer standard in a Title VII action to analyze whether naming a subsidiary in a charge was sufficient to notify parent company).

Schiele contends that under that analysis, the two companies constitute a single employer because they have common ownership, [1548] financial control and management. Vogel, the alleged perpetrator of much of the sexual harassment, is the sole shareholder of both corporations and is also the president and chairman of the board of the Minnesota facility and chairman of the board and president of the Wisconsin facility. Moreover, Schiele was employed at both facilities and alleges an ongoing pattern of sexual harassment conducted at both facilities by the same individual, Charles Vogel.^[4] Schiele also proffers evidence demonstrating the interrelationship of the operations and the centralized control of the employees at the two facilities.^[5] The court thus determines that interrelationship between Vogel, the Minnesota facility and the Wisconsin facility may be sufficient to deem the two facilities a single employer for purposes of Schiele's Title VII claims. See Sedlacek, 752 F.2d at 335-36.

Based on the foregoing, the court concludes that there is a material fact dispute concerning whether the Minnesota and Wisconsin facilities are a single employer for purposes of the notice and conciliation requirements of Title VII and whether those requirements were fulfilled for purposes of Schiele's claims against the Minnesota facility. Thus, the court denies defendants' motion for summary judgment based on Schiele's failure to name the Minnesota facility in her administrative charge.

Defendants also contend that summary judgment must be granted on Schiele's claim as it concerns sexual harassment at the Minnesota facility because those alleged violations occurred more than 180 days before Schiele filed her charge. Defendants' argument, however, fails to acknowledge that Schiele alleges sexual harassment of a continuing nature. Under Title VII, if a plaintiff alleges an ongoing course of sexual harassment, the charge may encompass unlawful conduct outside the charge filing period as long as at least one incident of unlawful conduct occurred within the requisite period of time. See, e.g., Burns v. McGregor Elec. Indus., 955 F.2d 559, 562 (8th Cir.1992) (court could properly consider evidence of sexual harassment occurring more than 180 days before charge filing period where plaintiff alleged "a continuing course of harassment"); Waltman v. International Paper Co., 875 F.2d 468, 474-76 (5th Cir.1989) (reversing district court's determination that acts of sexual harassment, occurring more than 180 days before charge was filed, were untimely because plaintiff raised a material fact dispute concerning the existence of a continuing violation); Satz v. ITT Financial Corp., 619 F.2d 738, 743-44 (8th Cir.1980) (adopting continuing violation doctrine for sex discrimination action under Title VII). Schiele alleges a pattern and practice of ongoing sexual harassment consisting of similar violations by one individual, Vogel, that began at the Minnesota facility and then continued at the Wisconsin facility. She also alleges more than one incident of harassment occurring within the 180 day period. Thus, the court finds that Schiele raises a material fact dispute regarding the existence of a continuing violation and denies defendants' [1549] motion for summary judgment on the timeliness of the alleged violations at the Minnesota facility. See Burns, 559 F.2d at 562.

Defendants also move for summary judgment Schiele's Title VII claim based on their contention that Schiele's allegations concerning Vogel's "tough talk" and her subjective beliefs concerning his intent are insufficient to support a claim of constructive discharge. They further contend that Schiele fails to present a prima facie case of discrimination.

The court first rejects defendants' contention that Schiele fails to raise a material fact dispute concerning her claim of constructive discharge. Schiele contends that when she confronted Vogel about the alleged sexual harassment, his response was so explosive that she became afraid "for her physical safety" and never returned to work after the altercation. That confrontation alone may be sufficient to establish constructive discharge. See Glass v. IDS Fin. Serv., 778 F.Supp. 1029, 1055 (D.Minn. 1991) ("`A constructive discharge exists when an employer deliberately renders the employee's working conditions intolerable and thus forces him to quit his job.'" quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981) (quotation omitted)). Schiele, however, alleges constructive discharge based not only on that confrontation but also as the result of an ongoing practice of sexual harassment:

When an employer fails to protect an employee from sexual harassment, thereby forcing the employee to endure an offensive environment or to quit working, the harassment becomes a "condition of employment" prohibited by Title VII.

Zabkowicz v. West Bend Co., 589 F.Supp. 780, 783 (E.D.Wis.1984) (citations omitted).^[6] Schiele proffers significant evidence of sexual harassment that is sufficiently egregious to support her assertion that her work conditions became such that a reasonable person would have found them abusive and intolerable. See Burns, 559 F.2d at 563, 564, (examining constructive discharge claim based on ongoing sexual harassment and holding that to establish a prima facie case, harassment must be severe enough so that a reasonable person would consider the environment to be abusive). Moreover, Vogel does not deny most of Schiele's allegations, but instead characterizes his alleged statements as "tough talk" that is not actionable because "other employees were exposed to the same verbal comments and did not leave their employment".^[7] The court, however, rejects defendants' justifications and finds that Schiele proffers sufficient evidence to raise a material fact dispute concerning constructive discharge.

The court further finds that Schiele's claim is sufficient to establish a prima facie case of hostile environment sexual harassment under Title VII. A plaintiff establishes such a prima facie case by showing that:

1. she is a member of a protected group;

[1550] 2. she was subjected to unwelcome sexual harassment;

3. the harassment was based on sex;

4. the harassment affected a term, condition, or privilege of employment; and

5. the employer knew or should have known of the harassment and failed to take proper remedial action.

Burns, 559 F.2d at 564, (citing Staton v. Maries County, 868 F.2d 996, 998 (8th Cir. 1989)). Examining those elements, it is undisputed that Schiele is a member of a protected class. Defendants also fail to dispute Schiele's claim that the sexual harassment was unwelcome. Schiele also alleges sufficient evidence to support the inference that Vogel's alleged harassment was based on her sex. See Burns, 559 F.2d at 564 ("sexual behavior directed at a woman raises the inference that the harassment is based on her sex" (citations omitted)); cf. Hall v. Gus Constr., 842 F.2d 1010 (8th Cir.1988) (acts of harassment need not be sexual in nature, but may include "any harassment or other unequal treatment of an employee ... that would not occur but for the sex of the employee"). As noted above, Schiele also proffers sufficient evidence to raise a material fact dispute concerning whether the harassment was sufficiently severe to create an abusive work environment. Finally, Vogel, as the alleged perpetrator and Schiele's employer, clearly knew of his own actions and failed to take any corrective action. Id. at 564, ("employer clearly knew of harassment" where one of the alleged perpetrators was also the owner of the plant). The court thus concludes that Schiele's claim is sufficient to establish a prima facie case of hostile environment sexual harassment.

Based on the foregoing, the court denies defendants' motion for summary judgment on Schiele's Title VII claim.

II. Schiele's State Law Claims

Schiele asserts a claim for invasion of privacy under Wis.Stat. § 895.50. She moves to amend her complaint to withdraw that claim pursuant to Federal Rule of Civil Procedure 15(a). Defendants do not oppose that motion. Accordingly, the court grants her motion and dismisses that claim without prejudice.

Schiele also brings claims of sexual harassment, sexual discrimination and wage discrimination under Minnesota statute and common law claims of defamation, and intentional and negligent infliction of emotional distress. Schiele contends that Minnesota law should be applied to her claims and that defendants' motion for summary judgment must be denied because all of her claims raise material fact disputes under Minnesota law. Defendants, however, ask the court to apply Wisconsin law, and argue that Schiele's claims fail under Wisconsin law. The court will thus analyze the horizontal choice of law question before reaching the merits of Schiele's state law claims. Three questions must be answered when analyzing such questions:

1. Is there a conflict between the state laws that may be outcome determinative? Cargill, Inc. v. Products Eng'g Co., 627 F.Supp. 1492, 1495 (D.Minn.1986) (citing Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973)).

2. Do the forum and alternative states both have sufficient contacts so that the application of either state's law satisfies constitutional due process? Allstate Ins. Co. v. Hague, 449 U.S. 302, 313-14, 101 S.Ct. 633, 640, 66 L.Ed.2d 521 (1981) (plurality).

3. Applying the choice of law analysis of the forum state, which state's law should apply? Klaxton Co. v. Stentor Elec. Motor Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941) (a district court sitting in diversity should apply the choice of law analysis of the state in which is presides to determine the applicable law); Filz v. Mayo Found., 136 F.R.D. 165, 167 n. 3, 172-74 (D.Minn.1991) (discussing procedures federal courts follow when presented with both horizontal and vertical choice of law questions).

Turning to the first question, the parties do not dispute that an outcome determinative conflict of laws exist between [1551] Wisconsin and Minnesota law. Examining the relevant case law, the court determines that application of Wisconsin law forecloses Schiele's state law claims, while Minnesota law permits such claims.^[8] The court thus concludes that an outcome determinative conflict exists.

Examining the constitutionality of the application of either Wisconsin or Minnesota law, the court determines that Wisconsin has sufficient contacts to justify the application of its law.^[9] Although defendants argue that Minnesota has insufficient contacts to satisfy constitutional due process, the court finds that the following contacts are sufficient to permit application of Minnesota law:

1. Schiele is a Minnesota resident;

2. One of the defendants, Harvey Vogel Manufacturing, is a Minnesota corporation with its principal place of business in Minnesota;

3. Schiele was originally hired at the Minnesota facility and alleges that three incidents of sexual harassment occurred there;

4. Charles Vogel is chairman of the board of the Minnesota facility;

5. Charles Vogel conducts a substantial portion of his business through defendants' Minnesota facility;

6. Charles Vogel commutes to work in Minnesota almost daily;

7. Many of the administrative affairs of defendants' Wisconsin facility are handled through Minnesota and the Minnesota facility; and

8. The two corporations share key employees, management and ownership.

See Hague, 449 U.S. at 313-20, 101 S.Ct. at 640-44 (upholding application of Minnesota law to accident where insurance company did business in Minnesota, decedent's widow became a Minnesota resident prior to litigation, and decedent was a resident of Wisconsin but commuted to Minnesota for work every day, although fatal crash occurred in Wisconsin and decedent was not going to work at that time); Counters v. Farmland Indus., 1988 WL 134800, at *2 (Minn.Ct.App.1988) (finding application of Minnesota discrimination law to employment dispute constitutional, even though employee worked for defendant in North Dakota at time dispute arose, because plaintiff was originally hired for a sales [1552] position in Minnesota and worked in Minnesota for five years); cf. Houle v. Stearns-Rogers Mfg. Co, 279 Minn. 345, 157 N.W.2d 362, 365 (1968) (Minnesota may assert jurisdiction over workers' compensation claim "on the sole ground that the contract of employment was entered into in the State of Minnesota"). The court thus concludes that it may apply either state's law without offending due process.

Finally, the court must apply Minnesota's choice of law analysis to determine which state's law to apply. Minnesota has adopted the choice-influencing considerations test as its choice of law method. See Milkovich, 203 N.W.2d at 412 (explicitly adopting Leflar's method, citing Robert Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L.Rev. 267, 279 (1966)).^[10] Under that method, the court examines the following five factors:

a. Predictability of results;

b. Maintenance of interstate and international order;

c. Simplification of the judicial task;

d. Advancement of the forum's governmental interest; and

e. Application of the better rule of law.

Id. The court will examine the Milkovich factors to determine whether it should apply Minnesota or Wisconsin law.

A. Predictability of Results

Schiele argues that predictability of results has little relevance in the present case because this factor is more critical in the context of contractual and other consensual arrangements and Schiele asserts tort claims. See Milkovich, 203 N.W.2d at 412 ("basically this test relates to consensual transactions where people should know in advance what law will govern their act"). Defendants contend, however, that the factor is relevant and favors application of Wisconsin law because Schiele's claims flow from an employment relationship grounded in Wisconsin. Assuming that this factor is relevant in the present context, the court nonetheless rejects defendants' claim that Wisconsin law offers a more predictable result. Schiele is a Minnesota resident who was originally hired and worked at the Minnesota facility. Vogel commutes to work at Minnesota facility virtually every day and his alleged harassment began at the Minnesota facility. Even while employed at the Wisconsin facility, Schiele proffers evidence demonstrating that she was subject to the control, supervision and direction of personnel from the Minneapolis facility, including Wayne Hald, comptroller of both corporations, Charles Reimer and Vogel. In addition, the decision to transfer Schiele to the Wisconsin facility was initially proposed by Hald and Jerry Hetland, two managerial employees of the Minnesota facility. Based on the foregoing, the court determines that defendants knew or should have known that Minnesota law may govern Schiele's claims. See Counters, 1988 WL 134800, at *2 (upholding application of Minnesota law under Milkovich because employer "should have known that an employment relationship originally entered into in Minnesota might be subject to Minnesota discrimination laws"). Thus, if this case is characterized as primarily a contractual rather than tortious claim, the court concludes predictability of results favors application of Minnesota law.

B. Maintenance of Interstate Order

Defendants contend that most of the significant contacts with Schiele's state law claims arise out of her employment relationship in Wisconsin and that applying Minnesota law would thus result in a breakdown in interstate order, impermissible forum shopping and extraterritorial application of Minnesota law in Wisconsin. Defendants argue that application of Wisconsin law would preserve interstate order, relying on Standal v. Armstrong Cork Co., 356 N.W.2d 380 (Minn.Ct.App.1984) to support their position. In Standal, the Minnesota Court of Appeals noted that "maintenance of interstate order requires only that the state whose laws are ultimately applied has a substantial connection [1553] with the facts and the particular issue." Id. at 381-82 (citing Milkovich, 203 N.W.2d at 412). In the present case, both Minnesota and Wisconsin have substantial contacts with Schiele's state law claims. As previously noted, Schiele is a Minnesota resident, originally employed in Minnesota by a Minnesota company and supervised by employees at the Minnesota facility even after her transfer, who asserts claims involving the actions of the chairman of the board of the Minnesota company who commutes to work in Minnesota almost every day. Although Wisconsin also has significant contacts, it is an oversimplification to characterize Schiele's case as one involving only a Wisconsin employment relationship. The court thus rejects defendants' claim that the application of Minnesota law would "work an absolutely catastrophic result". Defendants also fail to articulate any particular way in which interstate order would be threatened by application of Minnesota law. Moreover, examining the interests of the two states, the court notes that both states have a policy of compensating employees for injuries suffered at the hands of their employers and that application of Minnesota law is foreseeable on the present facts.^[11] See Counters, 1988 WL 134800, at *2 (Minnesota retains interest in employment relationship originally formed within its boundaries and application of its law is foreseeable in such circumstances). Concerns about forum shopping also lessens when a plaintiff is a resident of the state in which suit is brought. See Stenzel v. State Farm Mutual Automobile Ins. Co., 379 N.W.2d 674, 676 (Minn.Ct.App. 1986) (citing Hague v. Allstate Ins. Co., 289 N.W.2d 43, 49 (Minn.1978), aff'd, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981)). Based on the foregoing, the court finds that Minnesota courts would likely apply Minnesota law, and that such application is consistent with Minnesota state policy and does not unduly undermine Wisconsin's policies or threaten interstate order.

C. Simplification of the Judicial Task

Defendants argue that application of Wisconsin law would not affect the court's judicial task. Under Minnesota law, this factor:

"generally `poses no problem since the courts are fully capable of administering the law of another forum if called upon to do so.'"

Gimmestad v. Gimmestad, 451 N.W.2d 662, 666 (Minn.Ct.App.1990) (quoting Milkovich, 203 N.W.2d at 412). The Gimmestad court further noted, however, that:

this factor is obviously advanced when a Minnesota court applies Minnesota law.

See id.^[12] Applying this factor, the court concludes that on the present facts a Minnesota court would likely apply its own law for purposes of simplifying the judicial task.

D. Advance of the Forum's Governmental Interests

Consideration of the fourth and fifth factors carry the most weight in choice of law analysis. Milkovich, 203 N.W.2d at 412. In evaluating the forum's governmental interests, the court should not apply "rules, which, however acceptable they may be in other states, are inconsistent with [Minnesota's] concept of fairness and equity." Hime v. State Farm Fire & Casualty Co., 284 N.W.2d 829, 833 (Minn.1979). However:

[t]his interest will not manifest itself clearly if the out-of-state rule does not run contrary to some strong socio-legal policy of the forum, but it will become a major consideration if there is such a strong opposing local policy.

Milkovich, 203 N.W.2d at 414. Defendants contend that "only Wisconsin has an interest [1554] in regulating the economic and social consequences of sexual harassment occurring within its borders" and that "Minnesota has no government interest in regulating the relations of employers in the work place in Wisconsin." Such contentions, however, distort Schiele's situation. Wisconsin clearly has an interest in regulating employment relations for Wisconsin employers and provides various remedies for its employees. Those remedies, however, are not available to Schiele. The court thus finds that application of Wisconsin law will undermine Minnesota's interest, as a forum state, in ensuring that its citizens are compensated for injuries that they receive as a result of sexual harassment, defamation or intentional or negligent infliction of emotional distress. That interest is clearly demonstrated by Minnesota case law. See, e.g., Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428 (Minn.1983) (intentional infliction of emotional distress); Continental Can Co. v. State, 297 N.W.2d 241 (Minn.1980) (sexual harassment); Karnes v. Milo Beauty & Barber Supply Co., 441 N.W.2d 565 (Minn.Ct.App.1989) (defamation); Bohdan v. Alltool Mfg., 411 N.W.2d 902 (Minn.Ct.App.1987) (defamation and negligent infliction of emotional distress). The Minnesota Human Rights Act, which provides remedies for sexual harassment, also reflects that interest, specifically defining an "employee" for purposes of the act as "an individual who is employed by an employer and who resides or works in this state." Minn.Stat. § 363.01, subd. 16. Minnesota also recognizes a governmental interest in regulating the conduct of nonresident employers doing business in this state and in protecting the rights of its residents even if they are employed in another state. See Counters, 1988 WL 134800, at *2. The court thus finds that application of Minnesota law protects the forum's interest while application of Wisconsin law will undermine that interest.

E. Application of the Better Rule of Law

Defendants argue that Wisconsin's statutory scheme constitutes the better law because "only Wisconsin has an interest in regulating the economic and social consequences of sexual harassment occurring within its borders." The court, however, rejects that argument, noting that Minnesota has a strong governmental interest in protecting its resident employees and substantial contacts with Schiele's claims. The court further notes that if Wisconsin law is applied, Schiele does not have a remedy for many of her claims, a situation that makes it probable that a Minnesota court would choose Minnesota law as the better law. Courts, however, are to evaluate the better law only when the other choice influencing considerations leave the choice of law uncertain. See, e.g., Myers v. Government Employees Ins., 302 Minn. 359, 225 N.W.2d 238, 244 (1974). Because the court determines that application of Wisconsin law will strongly undermine Minnesota's governmental interest, the court does not resolve this issue.^[13]

Based on the foregoing, the court concludes that under the Milkovich analysis, a Minnesota court would apply Minnesota law to analyze defendants' motion for summary judgment on Schiele's state law claims. The court will thus apply Minnesota law to analyze each claim in turn.

1. Schiele's Defamation Claim

Under Minnesota law, a defamation claim requires evidence of a false statement that is communicated to a third person which tends to harm the plaintiff's reputation or to lower the plaintiff in the estimation of the community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980) (citing Restatement (Second) of Torts §§ 558-59 (1977)). In the present case, Vogel admits that he publicly accused Schiele of being a thief after she left his employ. Defendants, however, proffer no evidence to indicate that Schiele was a thief. Schiele proffers evidence indicating that his statements were false and recklessly or maliciously made for an improper motive on an improper occasion. The court [1555] thus finds that Schiele raises a material fact dispute concerning whether his statements were made with malice and for the purpose and effect of injuring Schiele. Based on the foregoing, the court denies defendants' motion for summary judgment on Schiele's defamation claim.

2. Schiele's Infliction of Emotional Distress Claims

Schiele also asserts claims for intentional and negligent infliction of emotional distress, contending that Vogel's conduct was atrocious, passed the boundaries of decency and was utterly intolerable to a civilized community. See Hubbard, 330 N.W.2d at 437-39. To succeed on her intentional infliction claim, Schiele must show that defendants, by extreme and outrageous conduct, intentionally or recklessly caused her to suffer severe emotional distress. See Eklund v. Vincent Brass & Aluminum Co., 351 N.W.2d 371, 378-79 (Minn.Ct.App.1984). On her claim for negligent infliction of emotional distress, Schiele:

may recover damages for metal anguish or suffering for a direct invasion of [her] rights, such as defamation, malicious prosecution, or other willful, wanton or malicious conduct.

Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn.Ct.App.1987) (finding exception to "zone of danger" requirement for negligent infliction claims); but see Meyer v. Tenvoorde Motor Co., 714 F.Supp. 991, 994-95 (D.Minn.1989) (declining to follow Bohdan and granting summary judgment on negligent infliction claim even though plaintiff asserted defamation claims that survived summary judgment motion). Examining the record, the court finds that Schiele raises a material fact dispute as to whether Vogel's conduct was "extreme and outrageous" and whether he engaged in such conduct either intentionally, recklessly or negligently. As previously discussed, Schiele's defamation claim also raises a material fact dispute. Bohdan, 411 N.W.2d at 907 (if plaintiff's "defamation action stands, [she] may assert negligent infliction of emotional distress" claim). Thus, the court denies defendants' motion for summary judgment on both the intentional and negligent infliction of emotional distress claims.

3. Schiele's State Sexual Harassment and Discrimination Claims

Schiele also asserts sexual harassment and sexual discrimination claims under the Minnesota Human Rights Act.^[14] In asserting such claims, a plaintiff has the option of either filing a charge with a "local commission" or the Minnesota Department of Human Rights, or proceeding directly into a state district court. Either option, however, must be pursued within one year. See Minn.Stat. § 363.06, subd. 3.^[15] Schiele claims that she was constructively discharged as of September 26, 1988, and filed actions in Minnesota and Wisconsin state courts in July 1990. Schiele thus failed to bring a civil action within one year. It is also undisputed that Schiele failed to file a claim with either the Minnesota Department of Human Rights or any Minnesota agency. She relies instead on the claim she filed with the Wisconsin Equal Rights Division of the Department of Industry, Labor and Human Relations, arguing that the Wisconsin agency is a "local commission" for purposes of the Minnesota Human Rights Act. The statute defines "local commission" as:

"Local commission" means an agency of a city, county, or group of counties created pursuant to law, resolution of a county board, city charter, or municipal ordinance for the purpose of dealing with [1556] discrimination on the basis of ... sex....

Minn.Stat. § 363.01, subd. 23. Schiele argues that the statutory definition does not explicitly limit local commissions to only those agencies found in Minnesota and that the court should construe the term to encompass a Wisconsin agency. The Minnesota Supreme Court has recognized that an agency like the St. Paul Department of Human Rights is a "local commission" for purposes of the statute, Lewis v. Metropolitan Transit Comm'n, 320 N.W.2d 426, 429 (Minn.1982), however, the issue of whether an out-of-state agency can be considered a "local commission" is apparently one of first impression. Although the court acknowledges that the Minnesota Human Rights Act should be liberally construed, in the absence of any Minnesota cases construing the term "local commission" so broadly as to include agencies in other states, the court declines to interpret the statute in that manner. Moreover, other sections of the Human Rights Act that include the term "local commission", for example, provisions permitting the commissioner to refer matters to a local commission for a report and recommendation, see Minn.Stat. § 363.115, or permitting a local commission to refer a matter under its jurisdiction to the commissioner, see Minn. Stat. § 363.116, are inconsistent with Schiele's interpretation of a "local commission" as including an agency outside the borders of the State of Minnesota. Based on the foregoing, the court rejects Schiele's contention that the Wisconsin Equal Rights Division is a local commission for purposes of the Minnesota Human Rights Act.

As a result, the court concludes that Schiele failed to properly institute her claims within the one-year statute of limitations, Minn.Stat. § 363.06, subd. 3, and that her claims thus are barred. Turner v. IDS Financial Serv., 471 N.W.2d 105, 108 (Minn.1991). Accordingly, the court grants defendants' motion for summary judgment on Schiele's claims brought under the Minnesota Human Rights Act.

4. Plaintiff's Wage Discrimination Claim

Schiele also asserts a claim for wage discrimination pursuant to Minn.Stat. § 181.67.^[16] Minnesota courts apply the McDonnell Douglas framework to analyze such claims. See Kolstad v. Fairway Foods, Inc., 457 N.W.2d 728, 734 (Minn.Ct. App.1990). Plaintiffs may establish a prima facie case by showing that a male successor was paid more per year for substantially similar tasks, based on actual job requirements and performance. See id. (citing Danz v. Jones, 263 N.W.2d 395, 400 (Minn.1978) (quoting 29 C.F.R. 800.121)). Schiele alleges that after she was constructively discharged, defendants hired a man with substantially similar duties who was paid $38,000, which was $16,000 more than Schiele was paid. In his deposition, Vogel admitted that a man was hired to replace Schiele and that her replacement was paid at a much higher salary. Vogel contends, however, that Schiele's replacement had more responsibility.^[17] Based on the record, the court determines that there is a material fact dispute regarding whether Schiele's replacement was performing tasks substantially similar to Schiele's, and thus denies defendants' motion for summary judgment on her wage discrimination claim. See id.

Based on the foregoing, IT IS HEREBY ORDERED that:

[1557] 1. Defendants' motion for summary judgment on Schiele's Title VII claim is denied;

2. Defendants' motion for summary judgment on Schiele's defamation claim is denied;

3. Defendants' motion for summary judgment on Schiele's negligent and intentional infliction of emotional distress claims is denied;

4. Defendants' motion for summary judgment on Schiele's claims asserted under the Minnesota Human Rights Act, Minn.Stat. § 363.01 et seq., is granted;

5. Defendants' motion for summary judgment on Schiele's wage discrimination claim under Minn.Stat. § 181.67 is denied; and

6. Schiele's motion to amend her complaint to dismiss without prejudice her invasion of privacy claim, contained in Count VIII, is granted.

[1] For example, Schiele alleges that on one occasion Vogel delivered a note to Schiele which read "chocolate chip cookies are great but my favorite is Pussy — I don't mean cats either." (Schiele Dep. at 142.)

[2] Schiele also asserted a claim for invasion of privacy under Wis.Stat. § 895.50. However, she seeks permission to amend her complaint to delete that claim. As discussed infra, the court dismisses that claim without prejudice.

[3]Title VII specifically requires that:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred....

42 U.S.C. § 2000e-5(e).

[4] Schiele also argues that the Minnesota facility is a proper party because the corporate veil should be pierced. Because the court denies defendants' motion for summary judgment on an alternative basis, the court does not address that issue.

[5]For example, while employed at the Wisconsin facility, Schiele was supervised by personnel from the Minnesota facility, including Vogel and Wayne Hald, the controller of both corporations. Schiele was interviewed and selected for her position at the Wisconsin facility by employees of the Minnesota facility. In addition, Schiele's transfer to the Wisconsin facility was originally proposed by two managers of the Minnesota facility, Hald and Jerry Hetland. During the time in which she worked for the Wisconsin facility, Schiele's medical insurance was provided by the Minnesota facility.

Vogel's deposition testimony also demonstrates that he completely controls the policy and business practices of both corporate defendants. Vogel maintains an office at the Minnesota facility where he performs tasks for both corporations. The operations of the two facilities are further interrelated because the Wisconsin facility pays the Minnesota facility to perform many accounting and recordkeeping functions and all three defendants are insured against property loss and liability through a single insurance contract.

[6]For purposes of Title VII, the EEOC defines sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ... (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

29 C.F.R. 1604.11(a).

[7] Defendants also attempt to justify the alleged sexual harassment by proffering evidence that Vogel's actions were prompted by his belief that Schiele was not performing her job up to defendants' expectation. Defendants attempt to argue that the evidence is sufficient under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973) to shift the burden to Schiele show that the proffered reason for Vogel's actions was pretextual. The court, however, rejects that contention, noting that McDonnell Douglas and its progeny do not stand for the proposition that an employee's allegedly inadequate job performance provides a legitimate, nondiscriminatory motive for sexual harassment of the type alleged by Schiele. Cf. Jones v. Wesco Inv., 846 F.2d 1154, 1157 n. 6 (8th Cir.1988) (rejecting employer's attempts to justify similar sexual harassment by characterizing it as a "`natural interaction between genders' which must be permitted to prevent `the collapse of our commercial system or the end of the human race'").

[8]If Wisconsin law governs the adjudication of Schiele's claims of infliction of emotional distress, defamation and sexual harassment, Schiele contends that she will be denied relief for her alleged injuries because she did not pursue her remedies under the Wisconsin Workers' Compensation Act and the Wisconsin Fair Employment Practices Act. Wisconsin courts interpret the Wisconsin Workers' Compensation Act to preempt most common law claims asserted by employees:

Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employe of the same employer and the worker's compensation insurance carrier. This section does not limit the right of an employe to bring action against any coemploye for an assault intended to cause bodily harm, or against a coemploye for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemploye of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or a local ordinance.

Wis.Stat. § 102.03(2). Thus, an employee may not bring an action for intentional infliction of emotional distress, e.g., Jenson v. Employers Mutual Casualty Co., 160 Wis.2d 263, 468 N.W.2d 1 (1991) (construing statute); or negligent infliction of emotional distress, e.g., Busse v. Gelco Express Corp., 678 F.Supp. 1398, 1400 (E.D.Wis. 1988) (holding that section 102.03(2) bars such claims); or defamation, e.g., Becker v. Automatic Garage Door Co., 156 Wis.2d 409, 456 N.W.2d 888, 891-92 (Wis.Ct.App.1990). As discussed infra, however, employees may assert such claims under Minnesota law.

The Wisconsin Fair Employment Act, Wis. Stat. §§ 111.31, et seq., would also preempt Schiele's statutory claims under Minn.Stat. § 181.67, wage discrimination, and Minn.Stat. § 363.03, sexual harassment and discrimination.

[9] Those contacts include: Charles Vogel Manufacturing Co. is a Wisconsin corporation with its principal place of business in Wisconsin; Charles Vogel is a resident of Wisconsin; many of the alleged violations occurred at the Wisconsin facility; Schiele filed a charge of discrimination with the EEOC in Wisconsin; and Schiele applied for unemployment benefits in Wisconsin. The parties do not dispute the determination that Wisconsin has sufficient contacts to justify application of its law.

[10] Wisconsin has also adopted the choice-influencing considerations test as its analysis. See Heath v. Zellmer, 151 N.W.2d 664, 672 (Wisc.1967).

[11] Although Wisconsin affords different remedies than Minnesota, both provide a method of compensating such employees.

[12]Wisconsin courts have also recognized:

a court's task is rarely simplified when the lawyers and judges must apply themselves to foreign rather than forum law.

Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664, 673 (Wis.1967) ("forum law should continue to be a primary concern of the forum court").

[13] The court further notes that although differing significantly, both states provide remedies for employee injuries, and the court declines to label one a better law.

[14] Schiele bases her both her federal and state sexual harassment claims on the same conduct. Her claim of sexual discrimination is based on the alleged disparity in compensation paid to Schiele, and her replacement, Charles Reimer.

[15]That section specifically provides that:

Time for filing a claim. A claim of an unfair discriminatory practice must be brought as a civil action pursuant to section 363.14, subdivision 1, clause (a), filed in a charge with a local commission pursuant to section 363.116, or filed in a charge with the commissioner within one year after the occurrence of the practice.

Minn.Stat. § 363.06, subd. 3.

[16]That section specifically provides that:

No employer shall discriminate between employees on the basis of sex by paying wages to employees at a rate less than the rate the employer pays to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex.

Minn.Stat. § 181.67, subd. 1.

[17] Defendants also contend that applying the Minnesota statute to a "Wisconsin" employment relationship violates the tenth amendment and notions of comity. As previously determined, however, Schiele is a Minnesota resident and her employment occurred both in Minnesota and Wisconsin. The court thus rejects defendants' contentions.

[468] Steven J. Cahill, Cahill & Marquart, PA, Moorhead, for appellant.

Robert Feder, Wold, Feder & Schimmelpfennig, P.C., Fargo, ND and Leslie A. Krisin, Mariscal, Weehe, McClnyrf & Friedlander, P.A., Phoenix, AZ, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

PAGE, Justice.

General Casualty of Wisconsin seeks review of a court of appeals decision affirming the trial court's decision in a declaratory judgment action brought by Timothy Jepson. The trial court concluded that Jepson was entitled to Minnesota underinsured motorist benefits as a result of a 1983 auto accident. The court's conclusion was based on its determination that Minnesota, and not North Dakota, law applied to the anti-stacking provisions in the policy. The trial court also concluded, and the court of appeals affirmed, that under Minnesota law Jepson could stack the benefits on each of the seven vehicles insured under the policy. At the time of the accident, North Dakota law would enforce the anti-stacking provisions in the policy while Minnesota law would not. Our choice of law analysis mandates the application of North Dakota law.^[1] We, therefore, vacate the judgment and remand to the trial court.

In March of 1983, Jepson purchased a general liability automobile insurance contract through the Dilworth Agency, Inc., Dilworth, Minnesota, providing coverage from General Casualty. Issued on April 7, 1983, the policy was effective from March 18, 1983, to March 18, 1984. The named insureds were Timothy and Deborah Jepson, National Muffler Shops, Inc., and National Muffler Warehouses, Inc. National Muffler Shops, Inc.'s address, at 72 North Second Street, Fargo, North Dakota 58102, was listed in the policy as the address for the named insureds. National Muffler Shops, Inc. and National Muffler Warehouses, Inc. are North Dakota corporations which do business in North Dakota.

The policy covered seven vehicles. Six of the vehicles were registered in North Dakota, and one was registered in Indiana. None of the vehicles were registered in Minnesota. All but two of the vehicles were registered in the name of either National Muffler Shops, Inc., or National Muffler Warehouses, Inc., the exception being a Corvette registered to Deborah Jepson at the National Muffler Shops' address and a GMC pick-up truck registered to Jepson's nephew at the same address.

The policy premium was calculated at North Dakota rates and paid by one of the corporations. Testimony indicated that it was General Casualty's practice to insure vehicles in the state where they were titled, that Minnesota insurance rates were substantially higher than North Dakota rates, and that, had the policy been written at higher rates, the insurance agent might have lost the sale.

The policy included a North Dakota Amendment of Cancellation Condition Endorsement and a North Dakota Basic Personal Injury Protection Endorsement. [469] Apart from these references, the policy does not indicate that it is a North Dakota policy. Jepson notes that the general policy change coding sheets reference state 22. The number 22 appears to be General Casualty's code for Minnesota.

Jepson testified that he specifically asked for underinsured and uninsured motorist coverage, and the policy purchased provided $100,000 per person/$300,000 per accident for underinsured and uninsured coverage. The policy prohibits stacking of the underinsured and uninsured benefits.

On December 18, 1983, Jepson and his wife were riding as passengers in a real estate agent's car in Phoenix, Arizona, when they were involved in a traffic accident. At the time, they were looking to purchase a home in Phoenix for reasons related to Jepson's health. The person who caused the accident had insurance with a liability limit of $250,000. Jepson settled with that individual for the policy limits. Jepson also received $100,000 from the coverage on the car in which he was riding.

Jepson applied for and received no-fault benefits from General Casualty under the North Dakota no-fault law. A dispute arose between Jepson and General Casualty regarding medical expenses payable under the personal injury protection coverage of the policy. As a result of that dispute, Jepson brought suit against General Casualty in North Dakota, claiming entitlement to North Dakota personal injury protection benefits. A summons and complaint dated September 24, 1985, were served on General Casualty. The lawsuit was settled prior to being filed in the district court. Jepson was represented in that matter by the same counsel representing him in this action.

In June of 1991, Jepson brought a declaratory judgment action in Minnesota, seeking underinsured motorist benefits under the General Casualty policy, and insisting that those benefits be stacked. The declaratory judgment action went forward, and the trial court concluded that Minnesota law should be applied; the trial court further concluded that under Minnesota law Jepson would be allowed to stack benefits on all seven vehicles. General Casualty moved for amended findings, which motion was denied, and then General Casualty appealed to the court of appeals on four issues: adequacy of notice, whether Jepson had met his burden of production, choice of law, and the number of vehicles to be stacked. The court of appeals affirmed the trial court's decision. General Casualty presents two issues^[2] for our review: (1) whether Minnesota law or North Dakota law governs the resolution of this underinsured motorist coverage dispute; and (2) if Minnesota law applies, how many of the insured vehicles may be stacked for purposes of underinsured motorist coverage. We reverse and remand.

In analyzing the choice of law issue, the first consideration is whether the choice of one state's law over another's creates an actual conflict. Hague v. Allstate Insurance Co., 289 N.W.2d 43, 46-47 (Minn.1979) (citing Myers v. Government Employees Insurance Co., 302 Minn. 359, 225 N.W.2d 238, 241 (1974)), affirmed 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). Here, North Dakota would enforce the anti-stacking provision in the policy, while under the law in effect at the time of the accident Minnesota would not. St. Paul Mercury Insurance Company v. Andrews, 321 N.W.2d 483, 489 (N.D.1982); Wasche v. Milbank Mutual Insurance Company, 268 N.W.2d 913, 919 (Minn.1978). Thus, an actual conflict exists.

Next, we must consider whether the law of both states can be constitutionally applied. The Supreme Court set out the test for constitutionality in Hague: "[F]or a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." Allstate [470] Insurance Co. v. Hague, 449 U.S. 302, 312-13, 101 S.Ct. 633, 640, 66 L.Ed.2d 521 (1981).

Both Minnesota and North Dakota have sufficient contacts such that the law of either state could be constitutionally applied. Contacts with Minnesota include Jepson residing in Minnesota at the time the insurance contract was made and at the time of the accident, Jepson's purchase of the policy through a Minnesota agency, and the regular use of at least two of the covered vehicles in Minnesota. North Dakota contacts include all of the covered vehicles but one being registered in North Dakota,^[3] the named insured's addresses being in North Dakota, and two of the named insureds were North Dakota corporations, located in North Dakota, and not registered or licensed to do business in Minnesota. Finally, one of those corporations paid the premiums on the insurance policy.

Having concluded that there is a conflict between Minnesota and North Dakota law and that either may be constitutionally applied, we next look to the five choice influencing factors set out in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973). They are: (1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interest; and (5) application of the better rule of law. Milkovich, 203 N.W.2d at 412. These five factors were put forward by Professor Leflar as a way of laying bare the reasons for choosing to apply one state's law over another. See Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267, 282 (1966); Robert A. Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif.L.Rev. 1584, 1586-88 (1966). These factors were not intended to spawn the evolution of set mechanical rules but instead to prompt courts to carefully and critically consider each new fact situation and explain in a straight-forward manner their choice of law. See Choice-Influencing Considerations in Conflicts Law at 281-82; Conflicts Law: More on Choice-Influencing Considerations at 1598. The lower courts need to wrestle with each situation anew. While prior opinions may be helpful to a court's deliberations, the court's obligation is to be true to the method rather than to seek superficial factual analogies between cases and import wholesale the choice of law analysis contained therein.

The trial court determined that the first factor, predictability, was not of great importance and the court of appeals agreed. General Casualty, however, contends that predictability is essential to insurance contracts and argues it reasonably expected its obligations to be governed by the law of the state where the contract was issued and where the insured property was generally located — North Dakota. The Jepsons argue that predictability of result favors Minnesota law because the policy was sold through a Minnesota agency, the Jepsons reside in Minnesota, and the policy covered at least two vehicles that were regularly driven from Minnesota residences to Jepson's place of business in Fargo.

This case involves the coverage an insurance policy provides for injuries suffered in an accident, and so has aspects of both contract and tort. Predictability of result as it relates to the tort aspect of a case is not of great importance in situations such as the one presented here because of the unplanned nature of automobile accidents. Hime v. State Farm Fire & Casualty Company, 284 N.W.2d 829, 833 (1979); Hague, 289 N.W.2d 43, 48 (1978). Predictability of result is of value in analyzing the contract aspects of a case. While where an accident occurs is unimportant, the obligations the insurer has to the insured at that time are important. The heart of the bargain between the insurer and the insured is the coverage the insured purchased. The parties enter into the insurance contract with the expectation that, should a dispute arise, the legal system will endeavor to give each side the benefit of their bargain. To the extent the choice of law in this case contributes to giving the parties the benefit of their bargain, it enhances the predictability of the parties' contractual arrangements.

[471] Although the accident occurred in Arizona, nothing was planned or done by either of the parties with regard to the insurance contract that was in any way directed to that state. In considering the bargain between Jepson and General Casualty, we note it was based on a number of factors that could only reflect a mutual expectation that they had negotiated a North Dakota insurance contract. The insurance policy covered named insureds at a North Dakota address and North Dakota registered and titled vehicles. The premium charges for the coverage were calculated at North Dakota rates. These circumstances suggest what the parties' reasonable expectations should have been at the time of contracting. Perhaps the parties might have predicted that, had Jepson been injured in one of the vehicles in Minnesota, Minnesota law might be applied. It is unlikely the parties would have predicted Minnesota law would apply in such circumstances as occurred here, that is, where Jepson was injured while riding in another person's vehicle in a state other than Minnesota or North Dakota.

Differences among the states in their laws and in their choice of law methods make predicting what law will apply to a case an uncertain exercise. It is, however, desirable for the courts of different states to reach similar conclusions on the choice of law in a given dispute. We think it unlikely most other courts would apply Minnesota law on the facts before us. The factor of preserving the parties' justified expectations and enhancing the predictability of what state's law will govern in a contractual dispute points away from the application of Minnesota law.

In discussing the second factor, the maintenance of interstate order, we are primarily concerned with whether the application of Minnesota law would manifest disrespect for North Dakota's sovereignty or impede the interstate movement of people and goods. An aspect of this concern is to maintain a coherent legal system in which the courts of different states strive to sustain, rather than subvert, each other's interests in areas where their own interests are less strong. Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267, 285-87 (1966). By approaching choice of law questions with these considerations in mind, the opportunities for forum shopping may be kept within reasonable bounds.

The trial court found that Minnesota had sufficient contacts with the case for this factor to weigh in favor of applying Minnesota law and the court of appeals concurred. General Casualty argues that the state whose law is ultimately applied should have the most significant contacts with the facts at issue. Minnesota, according to General Casualty, has minimal contacts with the facts, while both North Dakota and Arizona have far more significant contacts. For his part, Jepson argues that Minnesota has the most significant contacts and that it is irrelevant that the vehicles were registered in North Dakota or that their titles were held by North Dakota corporations. In support of this proposition, Jepson notes that in Amco Insurance Company v. Lang, 420 N.W.2d 895, 897 (Minn.1988), we observed that "it has been the rule in Minnesota that first party coverages follow the person, not the vehicle."

If the law of North Dakota promised Jepson a greater recovery than Minnesota, we doubt very much that he would be litigating this coverage dispute in our courts. People who purposefully seek advantages offered by another state ought not be allowed to avoid the burdens associated with their choice. We find evidence that Jepson is forum shopping in bringing this suit in our state's courts because he commenced, although settling prior to filing suit, litigation in North Dakota to secure no fault benefits payable under North Dakota law.^[4] Minnesota does not have an interest in encouraging forum shopping, particularly where we would be sending a message to those people living on our borders to take advantage of the benefits our neighboring states offer in terms of lower insurance rates, lower vehicle registration fees, and sales taxes, and then, if they are injured, [472] take advantage of Minnesota's greater willingness to compensate tort victims. Minnesota does not have an interest in encouraging that conduct.

Further, Jepson's reliance on Amco, 420 N.W.2d 895 is misplaced. The analysis in that case has no bearing on the choice of law issue confronting us here. First, Amco was not a choice of law case. Second, Jepson unwarrantedly attempts to extend what we did say in Amco. It is true that in Amco we held that "in Minnesota * * * first party coverages follow the person, not the vehicle." Amco, 420 N.W.2d at 897. Illogically, Jepson contends this proposition means not only that coverage follows the person, but that the policy automatically becomes a Minnesota policy because one of the named insureds is a Minnesota resident. That is simply not true.

Unlike the trial court and court of appeals, we find that the maintenance of interstate order weighs in favor of applying North Dakota law. North Dakota has the authority to regulate the terms of insurance for vehicles licensed and titled in that state. We interfere with the sovereignty of a sister state when we make our law available for people who seek Minnesota benefits while burdening the North Dakota insurance rate base and regulatory system.

The third factor, simplification of the judicial task, is not a significant factor in this case because the law of either state could be applied without difficulty.

The fourth choice influencing factor is which choice of law most advances a significant interest of the forum. General Casualty argues that Minnesota has no legitimate interest in applying its law, especially since Jepson no longer resides in Minnesota. Jepson believes that because he was a domiciliary of Minnesota at the time of the accident, and more generally because he is a tort victim and Minnesota has a policy of compensating tort victims, it is in Minnesota's interest to apply its law.

Minnesota places great value in compensating tort victims. We have even refused to apply our law when the law of another state would better serve to compensate a tort victim. Bigelow v. Halloran, 313 N.W.2d 10, 12-13 (Minn.1981) (noting that Minnesota and Iowa both had significant contacts with the subject of litigation, but choosing Iowa law because it was the "better rule of law"). But, however significant Minnesota's interest in the compensation of tort victims, we have other interests which in situations like this one are in conflict with the value we place on victim compensation. For example, we also believe that people should get the benefit of the contracts they enter into, nothing less and nothing more. Were the only choice-influencing consideration in this case our governmental interest, we might side with Jepson. On the facts of this case, however, our choice is influenced more by our analyses of predictability and maintenance of the interstate order than it is by our governmental interest in compensating a tort victim.

The final choice influencing factor to consider is whether, in an objective sense, North Dakota or Minnesota has the better rule of law. At the time of Jepson's accident, Minnesota law would not enforce the anti-stacking provision in the insurance policy while North Dakota would. In 1985, the legislature amended the law to prohibit stacking. Act of June 27, 1985, First Special Session, ch. 10, § 68, codified at Minn.Stat. § 65B.49, subd. 3a(6) (1992). General Casualty claims that to allow stacking cannot be considered the better rule of law precisely because Minnesota has banned stacking. As authority for this point, General Casualty relies on Stenzel v. State Farm Mutual Automobile Insurance Company, 379 N.W.2d 674 (Minn.App.1986), where the court of appeals reasoned that the 1985 amendment prohibiting stacking should be regarded as the better rule of law: "[n]ow that the legislature has spoken, we must follow its assessment of the `better rule.'" Stenzel at 676. Jepson counters that he is entitled to the benefit of the law that existed at the time of his injury. He relies on Wille v. Farm Bureau Mutual Insurance Company, 432 N.W.2d 784 (Minn.App.1988), where the court of appeals concluded the 1985 amendment prohibiting stacking did not require it to enforce anti-stacking provisions that violated Minnesota policy when the insurance contract was made. Wille at 787-88.

[473] The trial court found, and the court of appeals apparently agreed, that Minnesota's treatment of stacking at the time of the accident is the better rule of law. On our reading of the cases and briefs, however, neither Stenzel, nor Wille, nor the parties offer a compelling explanation of exactly why stacking or anti-stacking is a better rule. Stenzel wrongly asserts that, because the legislature prohibited stacking, we must find it to be the better rule of law. Stenzel, 379 N.W.2d at 676. If that were true, forum law would always be the better law and this step in our choice of law analysis would be meaningless. Wille simply states that because stacking provides greater compensation, it is a better rule. Wille, 432 N.W.2d at 786.

Leflar intended the better rule of law to be the rule that made "good socio-economic sense for the time when the court speaks." Robert A. Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif.L.Rev. 1584, 1588 (1966). We disagree with the views expressed in Stenzel and Wille, as well as by the parties, as to which is the better rule of law. From our present day vantage point, neither the law Minnesota had then, nor the law we have now, is clearly better. Sometimes different laws are neither better nor worse in an objective way, just different. Because we do not find either stacking or anti-stacking to be a better rule in the sense Leflar intended, this consideration does not influence our choice of law.

We hold that North Dakota law applies to Jepson's stacking claim. So deciding, the issue of how many vehicles may be stacked under the policy is moot.

Reversed and remanded to the trial court.

[1] Because we find that North Dakota law applies, we do not reach the issue of which vehicles could be stacked under the policy.

[2] General Casualty's brief argued that an appellate court need not defer to a trial court's findings of fact that derived from documentary, as opposed to testamentary, evidence under Minn. R.Civ.P. 52.01. General Casualty is wrong. Minn.R.Civ.P. 52.01 (1994) explicitly permits an appellate court to overrule a trial judge's findings of fact only when those findings are clearly erroneous, regardless of whether the findings are based on documentary or testamentary evidence.

[3] One covered vehicle was registered and kept in Indiana.

[4] To be eligible for the no fault benefits Jepson sought from General Casualty, North Dakota law requires an insured's vehicles be registered or principally garaged in North Dakota. N.D.C.C. §§ 26.1-41-02 (1987); 39-05-02.2 (1989).

134 S.Ct. 746 (2014)

No. 11-965.

Argued October 15, 2013.
Decided January 14, 2014.

[750] Thomas H. Dupree, Jr., Washington, DC, for Petitioner.

Edwin S. Kneedler, Washington, DC, for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.

Kevin Russell, Washington, DC, for Respondents.

Justs N. Karlsons, Matthew J. Kemner, David M. Rice, Troy M. Yoshino, Carroll, Burdick & McDonough LLP, San Francisco, Theodore B. Olson, Daniel W. Nelson, Thomas H. Dupree, Jr., Counsel of Record, Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, DC, Counsel for Petitioner.

Kevin K. Russell, Goldstein & Russell, P.C., Counsel of Record, Washington, DC, Pamela S. Karlan, Jeffrey L. Fisher, Stanford Law School, Supreme Court, Litigation Clinic, Stanford, Terrence P. Collingsworth, Christian Levesque, Conrad & Scherer, LLP, Washington, DC, for Respondents.

Justice GINSBURG delivered the opinion of the Court.

This case concerns the authority of a court in the United States to entertain a claim brought by foreign plaintiffs against a foreign defendant based on events occurring entirely outside the United States. The litigation commenced in 2004, when twenty-two Argentinian residents^[1] filed a complaint in the United States District Court for the Northern District of California against DaimlerChrysler Aktiengesellschaft [751] (Daimler),^[2] a German public stock company, headquartered in Stuttgart, that manufactures Mercedes-Benz vehicles in Germany. The complaint alleged that during Argentina's 1976-1983 "Dirty War," Daimler's Argentinian subsidiary, Mercedes-Benz Argentina (MB Argentina) collaborated with state security forces to kidnap, detain, torture, and kill certain MB Argentina workers, among them, plaintiffs or persons closely related to plaintiffs. Damages for the alleged human-rights violations were sought from Daimler under the laws of the United States, California, and Argentina. Jurisdiction over the lawsuit was predicated on the California contacts of Mercedes-Benz USA, LLC (MBUSA), a subsidiary of Daimler incorporated in Delaware with its principal place of business in New Jersey. MBUSA distributes Daimler-manufactured vehicles to independent dealerships throughout the United States, including California.

The question presented is whether the Due Process Clause of the Fourteenth Amendment precludes the District Court from exercising jurisdiction over Daimler in this case, given the absence of any California connection to the atrocities, perpetrators, or victims described in the complaint. Plaintiffs invoked the court's general or all-purpose jurisdiction. California, they urge, is a place where Daimler may be sued on any and all claims against it, wherever in the world the claims may arise. For example, as plaintiffs' counsel affirmed, under the proffered jurisdictional theory, if a Daimler-manufactured vehicle overturned in Poland, injuring a Polish driver and passenger, the injured parties could maintain a design defect suit in California. See Tr. of Oral Arg. 28-29. Exercises of personal jurisdiction so exorbitant, we hold, are barred by due process constraints on the assertion of adjudicatory authority.

In Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011), we addressed the distinction between general or all-purpose jurisdiction, and specific or conduct-linked jurisdiction. As to the former, we held that a court may assert jurisdiction over a foreign corporation "to hear any and all claims against [it]" only when the corporation's affiliations with the State in which suit is brought are so constant and pervasive "as to render [it] essentially at home in the forum State." Id., at ___, 131 S.Ct., at 2851. Instructed by Goodyear, we conclude Daimler is not "at home" in California, and cannot be sued there for injuries plaintiffs attribute to MB Argentina's conduct in Argentina.

I

In 2004, plaintiffs (respondents here) filed suit in the United States District Court for the Northern District of California, alleging that MB Argentina collaborated with Argentinian state security forces to kidnap, detain, torture, and kill plaintiffs and their relatives during the military dictatorship in place there from 1976 through 1983, a period known as Argentina's "Dirty War." Based on those allegations, plaintiffs asserted claims under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991, 106 Stat. 73, note following 28 U.S.C. § 1350, as well as claims for wrongful death and intentional infliction of emotional distress under the laws of California and Argentina. The incidents recounted in the [752] complaint center on MB Argentina's plant in Gonzalez Catan, Argentina; no part of MB Argentina's alleged collaboration with Argentinian authorities took place in California or anywhere else in the United States.

Plaintiffs' operative complaint names only one corporate defendant: Daimler, the petitioner here. Plaintiffs seek to hold Daimler vicariously liable for MB Argentina's alleged malfeasance. Daimler is a German Aktiengesellschaft (public stock company) that manufactures Mercedes-Benz vehicles in Germany and has its headquarters in Stuttgart. At times relevant to this case, MB Argentina was a subsidiary wholly owned by Daimler's predecessor in interest.

Daimler moved to dismiss the action for want of personal jurisdiction. Opposing the motion, plaintiffs submitted declarations and exhibits purporting to demonstrate the presence of Daimler itself in California. Alternatively, plaintiffs maintained that jurisdiction over Daimler could be founded on the California contacts of MBUSA, a distinct corporate entity that, according to plaintiffs, should be treated as Daimler's agent for jurisdictional purposes.

MBUSA, an indirect subsidiary of Daimler, is a Delaware limited liability corporation.^[3] MBUSA serves as Daimler's exclusive importer and distributor in the United States, purchasing Mercedes-Benz automobiles from Daimler in Germany, then importing those vehicles, and ultimately distributing them to independent dealerships located throughout the Nation. Although MBUSA's principal place of business is in New Jersey, MBUSA has multiple California-based facilities, including a regional office in Costa Mesa, a Vehicle Preparation Center in Carson, and a Classic Center in Irvine. According to the record developed below, MBUSA is the largest supplier of luxury vehicles to the California market. In particular, over 10% of all sales of new vehicles in the United States take place in California, and MBUSA's California sales account for 2.4% of Daimler's worldwide sales.

The relationship between Daimler and MBUSA is delineated in a General Distributor Agreement, which sets forth requirements for MBUSA's distribution of Mercedes-Benz vehicles in the United States. That agreement established MBUSA as an "independent contracto[r]" that "buy[s] and sell[s] [vehicles] ... as an independent business for [its] own account." App. 179a. The agreement "does not make [MBUSA] ... a general or special agent, partner, joint venturer or employee of DAIMLERCHRYSLER or any Daimler-Chrysler Group Company"; MBUSA "ha[s] no authority to make binding obligations for or act on behalf of DAIMLERCHRYSLER or any DaimlerChrysler Group Company." Ibid.

After allowing jurisdictional discovery on plaintiffs' agency allegations, the District Court granted Daimler's motion to dismiss. Daimler's own affiliations with California, the court first determined, were insufficient to support the exercise of all-purpose jurisdiction over the corporation. Bauman v. DaimlerChrysler AG, No. C-04-00194 RMW (N.D.Cal., Nov. 22, 2005), App. to Pet. for Cert. 111a-112a, 2005 WL 3157472, *9-*10. Next, the court declined to attribute MBUSA's California contacts to Daimler on an agency theory, concluding that plaintiffs failed to demonstrate that MBUSA acted as Daimler's agent. Id., at 117a, 133a, 2005 WL 3157472, *12, *19; Bauman v. DaimlerChrysler AG, No. [753] C-04-00194 RMW (N.D.Cal., Feb. 12, 2007), App. to Pet. for Cert. 83a-85a, 2007 WL 486389, *2.

The Ninth Circuit at first affirmed the District Court's judgment. Addressing solely the question of agency, the Court of Appeals held that plaintiffs had not shown the existence of an agency relationship of the kind that might warrant attribution of MBUSA's contacts to Daimler. Bauman v. DaimlerChrysler Corp., 579 F.3d 1088, 1096-1097 (2009). Judge Reinhardt dissented. In his view, the agency test was satisfied and considerations of "reasonableness" did not bar the exercise of jurisdiction. Id., at 1098-1106. Granting plaintiffs' petition for rehearing, the panel withdrew its initial opinion and replaced it with one authored by Judge Reinhardt, which elaborated on reasoning he initially expressed in dissent. Bauman v. Daimler-Chrysler Corp., 644 F.3d 909 (C.A.9 2011).

Daimler petitioned for rehearing and rehearing en banc, urging that the exercise of personal jurisdiction over Daimler could not be reconciled with this Court's decision in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). Over the dissent of eight judges, the Ninth Circuit denied Daimler's petition. See Bauman v. DaimlerChrysler Corp., 676 F.3d 774 (2011) (O'Scannlain, J., dissenting from denial of rehearing en banc).

We granted certiorari to decide whether, consistent with the Due Process Clause of the Fourteenth Amendment, Daimler is amenable to suit in California courts for claims involving only foreign plaintiffs and conduct occurring entirely abroad. 569 U.S. ___, 133 S.Ct. 1995, 185 L.Ed.2d 865 (2013).

II

Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons. See Fed. Rule Civ. Proc. 4(k)(1)(A) (service of process is effective to establish personal jurisdiction over a defendant "who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located"). Under California's long-arm statute, California state courts may exercise personal jurisdiction "on any basis not inconsistent with the Constitution of this state or of the United States." Cal. Civ. Proc. Code Ann. § 410.10 (West 2004). California's long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U.S. Constitution. We therefore inquire whether the Ninth Circuit's holding comports with the limits imposed by federal due process. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 464, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

III

In Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), decided shortly after the enactment of the Fourteenth Amendment, the Court held that a tribunal's jurisdiction over persons reaches no farther than the geographic bounds of the forum. See id., at 720 ("The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established."). See also Shaffer v. Heitner, 433 U.S. 186, 197, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (Under Pennoyer, "any attempt `directly' to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State's power."). In time, however, that strict territorial approach yielded to a less rigid understanding, spurred by "changes in the technology of transportation and communication, and the tremendous growth of interstate business activity." Burnham v. Superior Court of Cal., [754] County of Marin, 495 U.S. 604, 617, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) (opinion of SCALIA, J.).

"The canonical opinion in this area remains International Shoe [Co. v. Washington], 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95 (1945)], in which we held that a State may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendant has `certain minimum contacts with [the State] such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."'" Goodyear, 564 U.S., at ___, 131 S.Ct., at 2853 (quoting International Shoe, 326 U.S., at 316, 66 S.Ct. 154). Following International Shoe, "the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction." Shaffer, 433 U.S., at 204, 97 S.Ct. 2569.

International Shoe's conception of "fair play and substantial justice" presaged the development of two categories of personal jurisdiction. The first category is represented by International Shoe itself, a case in which the in-state activities of the corporate defendant "ha[d] not only been continuous and systematic, but also g[a]ve rise to the liabilities sued on." 326 U.S., at 317, 66 S.Ct. 154.^[4]International Shoe recognized, as well, that "the commission of some single or occasional acts of the corporate agent in a state" may sometimes be enough to subject the corporation to jurisdiction in that State's tribunals with respect to suits relating to that in-state activity. Id., at 318, 66 S.Ct. 154. Adjudicatory authority of this order, in which the suit "aris[es] out of or relate[s] to the defendant's contacts with the forum," Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), is today called "specific jurisdiction." See Goodyear, 564 U.S., at ___, 131 S.Ct., at 2853 (citing von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L.Rev. 1121, 1144-1163 (1966) (hereinafter von Mehren & Trautman)).

International Shoe distinguished between, on the one hand, exercises of specific jurisdiction, as just described, and on the other, situations where a foreign corporation's "continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities." 326 U.S., at 318, 66 S.Ct. 154. As we have since explained, "[a] court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so `continuous and systematic' as to render them essentially at home in the forum State." Goodyear, 564 U.S., at ___, 131 S.Ct., at 2851; see id., at ___, 131 S.Ct., at 2853-2854; Helicopteros, 466 U.S., at 414, n. 9, 104 S.Ct. 1868.^[5]

[755] Since International Shoe, "specific jurisdiction has become the centerpiece of modern jurisdiction theory, while general jurisdiction [has played] a reduced role." Goodyear, 564 U.S., at ___, 131 S.Ct., at 2854 (quoting Twitchell, The Myth of General Jurisdiction, 101 Harv. L.Rev. 610, 628 (1988)). International Shoe's momentous departure from Pennoyer's rigidly territorial focus, we have noted, unleashed a rapid expansion of tribunals' ability to hear claims against out-of-state defendants when the episode-in-suit occurred in the forum or the defendant purposefully availed itself of the forum.^[6] Our subsequent decisions have continued to bear out the prediction that "specific jurisdiction will come into sharper relief and form a considerably more significant part of the scene." von Mehren & Trautman 1164.^[7]

Our post-International Shoe opinions on general jurisdiction, by comparison, are few. "[The Court's] 1952 decision in Perkins v. Benguet Consol. Mining Co. remains the textbook case of general jurisdiction [756] appropriately exercised over a foreign corporation that has not consented to suit in the forum." Goodyear, 564 U.S., at ___, 131 S.Ct., at 2856 (internal quotation marks and brackets omitted). The defendant in Perkins, Benguet, was a company incorporated under the laws of the Philippines, where it operated gold and silver mines. Benguet ceased its mining operations during the Japanese occupation of the Philippines in World War II; its president moved to Ohio, where he kept an office, maintained the company's files, and oversaw the company's activities. Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 448, 72 S.Ct. 413, 96 L.Ed. 485 (1952). The plaintiff, an Ohio resident, sued Benguet on a claim that neither arose in Ohio nor related to the corporation's activities in that State. We held that the Ohio courts could exercise general jurisdiction over Benguet without offending due process. Ibid. That was so, we later noted, because "Ohio was the corporation's principal, if temporary, place of business." Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780, n. 11, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984).^[8]

The next case on point, Helicopteros, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404, arose from a helicopter crash in Peru. Four U.S. citizens perished in that accident; their survivors and representatives brought suit in Texas state court against the helicopter's owner and operator, a Colombian corporation. That company's contacts with Texas were confined to "sending its chief executive officer to Houston for a [757] contract-negotiation session; accepting into its New York bank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training services from [a Texas-based helicopter company] for substantial sums; and sending personnel to [Texas] for training." Id., at 416, 104 S.Ct. 1868. Notably, those contacts bore no apparent relationship to the accident that gave rise to the suit. We held that the company's Texas connections did not resemble the "continuous and systematic general business contacts ... found to exist in Perkins." Ibid. "[M]ere purchases, even if occurring at regular intervals," we clarified, "are not enough to warrant a State's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions." Id., at 418, 104 S.Ct. 1868.

Most recently, in Goodyear, we answered the question: "Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State?" 564 U.S., at ___, 131 S.Ct. at 2850. That case arose from a bus accident outside Paris that killed two boys from North Carolina. The boys' parents brought a wrongful-death suit in North Carolina state court alleging that the bus's tire was defectively manufactured. The complaint named as defendants not only The Goodyear Tire and Rubber Company (Goodyear), an Ohio corporation, but also Goodyear's Turkish, French, and Luxembourgian subsidiaries. Those foreign subsidiaries, which manufactured tires for sale in Europe and Asia, lacked any affiliation with North Carolina. A small percentage of tires manufactured by the foreign subsidiaries were distributed in North Carolina, however, and on that ground, the North Carolina Court of Appeals held the subsidiaries amenable to the general jurisdiction of North Carolina courts.

We reversed, observing that the North Carolina court's analysis "elided the essential difference between case-specific and all-purpose (general) jurisdiction." Id., at ___, 131 S.Ct., at 2855. Although the placement of a product into the stream of commerce "may bolster an affiliation germane to specific jurisdiction," we explained, such contacts "do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant." Id., at ___, 131 S.Ct., at 2857. As International Shoe itself teaches, a corporation's "continuous activity of some sorts within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity." 326 U.S., at 318, 66 S.Ct. 154. Because Goodyear's foreign subsidiaries were "in no sense at home in North Carolina," we held, those subsidiaries could not be required to submit to the general jurisdiction of that State's courts. 564 U.S., at ___, 131 S.Ct., at 2857. See also J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. ___, ___, 131 S.Ct. 2780, 2797-2798, 180 L.Ed.2d 765 (2011) (GINSBURG, J., dissenting) (noting unanimous agreement that a foreign manufacturer, which engaged an independent U.S.-based distributor to sell its machines throughout the United States, could not be exposed to all-purpose jurisdiction in New Jersey courts based on those contacts).

As is evident from Perkins, Helicopteros, and Goodyear, general and specific jurisdiction have followed markedly different trajectories post-International Shoe. Specific jurisdiction has been cut loose from Pennoyer's sway, but we have declined to stretch general jurisdiction beyond [758] limits traditionally recognized.^[9] As this Court has increasingly trained on the "relationship among the defendant, the forum, and the litigation," Shaffer, 433 U.S., at 204, 97 S.Ct. 2569, i.e., specific jurisdiction,^[10] general jurisdiction has come to occupy a less dominant place in the contemporary scheme.^[11]

IV

With this background, we turn directly to the question whether Daimler's affiliations with California are sufficient to subject it to the general (all-purpose) personal jurisdiction of that State's courts. In the proceedings below, the parties agreed on, or failed to contest, certain points we now take as given. Plaintiffs have never attempted to fit this case into the specific jurisdiction category. Nor did plaintiffs challenge on appeal the District Court's holding that Daimler's own contacts with California were, by themselves, too sporadic to justify the exercise of general jurisdiction. While plaintiffs ultimately persuaded the Ninth Circuit to impute MBUSA's California contacts to Daimler on an agency theory, at no point have they maintained that MBUSA is an alter ego of Daimler.

Daimler, on the other hand, failed to object below to plaintiffs' assertion that the California courts could exercise all-purpose jurisdiction over MBUSA.^[12] But see Brief for Petitioner 23, n. 4 (suggestion that in light of Goodyear, MBUSA may not be amenable to general jurisdiction in California); Brief for United States as Amicus Curiae 16, n. 5 (hereinafter U.S. Brief) (same). We will assume then, for purposes of this decision only, that MBUSA qualifies as at home in California.

A

In sustaining the exercise of general jurisdiction over Daimler, the Ninth Circuit relied on an agency theory, determining that MBUSA acted as Daimler's agent for jurisdictional purposes and then [759] attributing MBUSA's California contacts to Daimler. The Ninth Circuit's agency analysis derived from Circuit precedent considering principally whether the subsidiary "performs services that are sufficiently important to the foreign corporation that if it did not have a representative to perform them, the corporation's own officials would undertake to perform substantially similar services." 644 F.3d, at 920 (quoting Doe v. Unocal Corp., 248 F.3d 915, 928 (C.A.9 2001); emphasis deleted).

This Court has not yet addressed whether a foreign corporation may be subjected to a court's general jurisdiction based on the contacts of its in-state subsidiary. Daimler argues, and several Courts of Appeals have held, that a subsidiary's jurisdictional contacts can be imputed to its parent only when the former is so dominated by the latter as to be its alter ego. The Ninth Circuit adopted a less rigorous test based on what it described as an "agency" relationship. Agencies, we note, come in many sizes and shapes: "One may be an agent for some business purposes and not others so that the fact that one may be an agent for one purpose does not make him or her an agent for every purpose." 2A C. J. S., Agency § 43, p. 367 (2013) (footnote omitted).^[13] A subsidiary, for example, might be its parent's agent for claims arising in the place where the subsidiary operates, yet not its agent regarding claims arising elsewhere. The Court of Appeals did not advert to that prospect. But we need not pass judgment on invocation of an agency theory in the context of general jurisdiction, for in no event can the appeals court's analysis be sustained.

The Ninth Circuit's agency finding rested primarily on its observation that MBUSA's services were "important" to Daimler, as gauged by Daimler's hypothetical readiness to perform those services itself if MBUSA did not exist. Formulated this way, the inquiry into importance stacks the deck, for it will always yield a pro-jurisdiction answer: "Anything a corporation does through an independent contractor, subsidiary, or distributor is presumably something that the corporation would do `by other means' if the independent contractor, subsidiary, or distributor did not exist." 676 F.3d, at 777 (O'Scannlain, J., dissenting from denial of rehearing en banc).^[14] The Ninth Circuit's agency theory [760] thus appears to subject foreign corporations to general jurisdiction whenever they have an in-state subsidiary or affiliate, an outcome that would sweep beyond even the "sprawling view of general jurisdiction" we rejected in Goodyear. 564 U.S., at ___, 131 S.Ct., at 2856.^[15]

B

Even if we were to assume that MBUSA is at home in California, and further to assume MBUSA's contacts are imputable to Daimler, there would still be no basis to subject Daimler to general jurisdiction in California, for Daimler's slim contacts with the State hardly render it at home there.^[16]

Goodyear made clear that only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there. "For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home." 564 U.S., at ___, 131 S.Ct., at 2853-2854 (citing Brilmayer et al., A General Look at General Jurisdiction, 66 Texas L.Rev. 721, 728 (1988)). With respect to a corporation, the place of incorporation and principal place of business are "paradig[m] ... bases for general jurisdiction." Id., at 735. See also Twitchell, 101 Harv. L.Rev., at 633. Those affiliations have the virtue of being unique — that is, each ordinarily indicates only one place — as well as easily ascertainable. Cf. Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) ("Simple jurisdictional rules ... promote greater predictability."). These bases afford plaintiffs recourse to at least one clear and certain forum in which a corporate defendant may be sued on any and all claims.

Goodyear did not hold that a corporation may be subject to general jurisdiction only in a forum where it is incorporated or has its principal place of business; it simply typed those places paradigm all-purpose forums. Plaintiffs would have us look beyond the exemplar bases Goodyear identified, [761] and approve the exercise of general jurisdiction in every State in which a corporation "engages in a substantial, continuous, and systematic course of business." Brief for Respondents 16-17, and nn. 7-8. That formulation, we hold, is unacceptably grasping.

As noted, see supra, at 753-754, the words "continuous and systematic" were used in International Shoe to describe instances in which the exercise of specific jurisdiction would be appropriate. See 326 U.S., at 317, 66 S.Ct. 154 (jurisdiction can be asserted where a corporation's in-state activities are not only "continuous and systematic, but also give rise to the liabilities sued on").^[17] Turning to all-purpose jurisdiction, in contrast, International Shoe speaks of "instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit ... on causes of action arising from dealings entirely distinct from those activities." Id., at 318, 66 S.Ct. 154 (emphasis added). See also Twitchell, Why We Keep Doing Business With Doing-Business Jurisdiction, 2001 U. Chi. Legal Forum 171, 184 (International Shoe "is clearly not saying that dispute-blind jurisdiction exists whenever `continuous and systematic' contacts are found.").<sup>[18]</sup> Accordingly, the inquiry under Goodyear is not whether a foreign corporation's in-forum contacts can be said to be in some sense "continuous and systematic," it is whether that corporation's "affiliations with the State are so `continuous and systematic' as to render [it] essentially at home in the forum State." 564 U.S., at ___, 131 S.Ct., at 2851.^[19]

Here, neither Daimler nor MBUSA is incorporated in California, nor does either entity have its principal place of business there. If Daimler's California activities sufficed to allow adjudication of this Argentina-rooted case in California, the same global reach would presumably be available in every other State in which MBUSA's sales are sizable. Such exorbitant exercises of all-purpose jurisdiction would [762] scarcely permit out-of-state defendants "to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." Burger King Corp., 471 U.S., at 472, 105 S.Ct. 2174 (internal quotation marks omitted).

It was therefore error for the Ninth Circuit to conclude that Daimler, even with MBUSA's contacts attributed to it, was at home in California, and hence subject to suit there on claims by foreign plaintiffs having nothing to do with anything that occurred or had its principal impact in California.^[20]

C

Finally, the transnational context of this dispute bears attention. The Court of Appeals emphasized, as supportive of the exercise of general jurisdiction, plaintiffs' assertion of claims under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U.S.C. § 1350. See 644 F.3d, at 927 ("American federal courts, be they in California or any other state, have a strong interest in adjudicating and redressing international human rights abuses."). Recent decisions of this Court, however, have [763] rendered plaintiffs' ATS and TVPA claims infirm. See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. ___, ___, 133 S.Ct. 1659, 1669, 185 L.Ed.2d 671 (2013) (presumption against extraterritorial application controls claims under the ATS); Mohamad v. Palestinian Authority, 566 U.S. ___, ___, 132 S.Ct. 1702, 1705, 182 L.Ed.2d 720 (2012) (only natural persons are subject to liability under the TVPA).

The Ninth Circuit, moreover, paid little heed to the risks to international comity its expansive view of general jurisdiction posed. Other nations do not share the uninhibited approach to personal jurisdiction advanced by the Court of Appeals in this case. In the European Union, for example, a corporation may generally be sued in the nation in which it is "domiciled," a term defined to refer only to the location of the corporation's "statutory seat," "central administration," or "principal place of business." European Parliament and Council Reg. 1215/2012, Arts. 4(1), and 63(1), 2012 O.J. (L. 351) 7, 18. See also id., Art. 7(5), 2012 O.J. 7 (as to "a dispute arising out of the operations of a branch, agency or other establishment," a corporation may be sued "in the courts for the place where the branch, agency or other establishment is situated" (emphasis added)). The Solicitor General informs us, in this regard, that "foreign governments' objections to some domestic courts' expansive views of general jurisdiction have in the past impeded negotiations of international agreements on the reciprocal recognition and enforcement of judgments." U.S. Brief 2 (citing Juenger, The American Law of General Jurisdiction, 2001 U. Chi. Legal Forum 141, 161-162). See also U.S. Brief 2 (expressing concern that unpredictable applications of general jurisdiction based on activities of U.S.-based subsidiaries could discourage foreign investors); Brief for Respondents 35 (acknowledging that "doing business" basis for general jurisdiction has led to "international friction"). Considerations of international rapport thus reinforce our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the "fair play and substantial justice" due process demands. International Shoe, 326 U.S., at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).

* * *

For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is

Reversed.

Justice SOTOMAYOR, concurring in the judgment.

I agree with the Court's conclusion that the Due Process Clause prohibits the exercise of personal jurisdiction over Daimler in light of the unique circumstances of this case. I concur only in the judgment, however, because I cannot agree with the path the Court takes to arrive at that result.

The Court acknowledges that Mercedes-Benz USA, LLC (MBUSA), Daimler's wholly owned subsidiary, has considerable contacts with California. It has multiple facilities in the State, including a regional headquarters. Each year, it distributes in California tens of thousands of cars, the sale of which generated billions of dollars in the year this suit was brought. And it provides service and sales support to customers throughout the State. Daimler has conceded that California courts may exercise general jurisdiction over MBUSA on the basis of these contacts, and the Court assumes that MBUSA's contacts may be attributed to Daimler for the purpose of deciding whether Daimler is also subject to general jurisdiction.

Are these contacts sufficient to permit the exercise of general jurisdiction over [764] Daimler? The Court holds that they are not, for a reason wholly foreign to our due process jurisprudence. The problem, the Court says, is not that Daimler's contacts with California are too few, but that its contacts with other forums are too many. In other words, the Court does not dispute that the presence of multiple offices, the direct distribution of thousands of products accounting for billions of dollars in sales, and continuous interaction with customers throughout a State would be enough to support the exercise of general jurisdiction over some businesses. Daimler is just not one of those businesses, the Court concludes, because its California contacts must be viewed in the context of its extensive "nationwide and worldwide" operations. Ante, at 762, n. 20. In recent years, Americans have grown accustomed to the concept of multinational corporations that are supposedly "too big to fail"; today the Court deems Daimler "too big for general jurisdiction."

The Court's conclusion is wrong as a matter of both process and substance. As to process, the Court decides this case on a ground that was neither argued nor passed on below, and that Daimler raised for the first time in a footnote to its brief. Brief for Petitioner 31-32, n. 5. As to substance, the Court's focus on Daimler's operations outside of California ignores the lodestar of our personal jurisdiction jurisprudence: A State may subject a defendant to the burden of suit if the defendant has sufficiently taken advantage of the State's laws and protections through its contacts in the State; whether the defendant has contacts elsewhere is immaterial.

Regrettably, these errors are unforced. The Court can and should decide this case on the far simpler ground that, no matter how extensive Daimler's contacts with California, that State's exercise of jurisdiction would be unreasonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct, and given that a more appropriate forum is available. Because I would reverse the judgment below on this ground, I concur in the judgment only.

I

I begin with the point on which the majority and I agree: The Ninth Circuit's decision should be reversed.

Our personal jurisdiction precedents call for a two-part analysis. The contacts prong asks whether the defendant has sufficient contacts with the forum State to support personal jurisdiction; the reasonableness prong asks whether the exercise of jurisdiction would be unreasonable under the circumstances. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). As the majority points out, all of the cases in which we have applied the reasonableness prong have involved specific as opposed to general jurisdiction. Ante, at 762, n. 20. Whether the reasonableness prong should apply in the general jurisdiction context is therefore a question we have never decided,^[21] and it is one on which I can appreciate [765] the arguments on both sides. But it would be imprudent to decide that question in this case given that respondents have failed to argue against the application of the reasonableness prong during the entire 8-year history of this litigation. See Brief for Respondents 11, 12, 13, 16 (conceding application of the reasonableness inquiry); Plaintiffs' Opposition to Defendant's Motion to Quash Service of Process and to Dismiss for Lack of Personal Jurisdiction in No. 04-00194-RMW (ND Cal., May 16, 2005), pp. 14-23 (same). As a result, I would decide this case under the reasonableness prong without foreclosing future consideration of whether that prong should be limited to the specific jurisdiction context.^[22]

We identified the factors that bear on reasonableness in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987): "the burden on the defendant, the interests of the forum State," "the plaintiff's interest in obtaining relief" in the forum State, and the interests of other sovereigns in resolving the dispute. Id., at 113-114, 107 S.Ct. 1026. We held in Asahi that it would be "unreasonable and unfair" for a California court to exercise jurisdiction over a claim between a Taiwanese plaintiff and a Japanese defendant that arose out of a transaction in Taiwan, particularly where the Taiwanese plaintiff had not shown that it would be more convenient to litigate in California than in Taiwan or Japan. Id., at 114, 107 S.Ct. 1026.

The same considerations resolve this case. It involves Argentine plaintiffs suing a German defendant for conduct that took place in Argentina. Like the plaintiffs in Asahi, respondents have failed to show that it would be more convenient to litigate in California than in Germany, a sovereign with a far greater interest in resolving the dispute. Asahi thus makes clear that it would be unreasonable for a court in California to subject Daimler to its jurisdiction.

II

The majority evidently agrees that, if the reasonableness prong were to apply, it would be unreasonable for California courts to exercise jurisdiction over Daimler in this case. See ante, at 761-762 (noting that it would be "exorbitant" for California courts to exercise general jurisdiction over Daimler, a German defendant, in this "Argentina-rooted case" brought by "foreign plaintiffs"). But instead of resolving the case on this uncontroversial basis, the majority reaches out to decide it on a ground neither argued nor decided below.^[23]

[766] We generally do not pass on arguments that lower courts have not addressed. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). After all, "we are a court of review, not of first view." Ibid. This principle carries even greater force where the argument at issue was never pressed below. See Glover v. United States, 531 U.S. 198, 205, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001). Yet the majority disregards this principle, basing its decision on an argument raised for the first time in a footnote of Daimler's merits brief before this Court. Brief for Petitioner 32, n. 5 ("Even if MBUSA were a division of Daimler AG rather than a separate corporation, Daimler AG would still ... not be `at home' in California").

The majority's decision is troubling all the more because the parties were not asked to brief this issue. We granted certiorari on the question "whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State." Pet. for Cert. i. At no point in Daimler's petition for certiorari did the company contend that, even if this attribution question were decided against it, its contacts in California would still be insufficient to support general jurisdiction. The parties' merits briefs accordingly focused on the attribution-of-contacts question, addressing the reasonableness inquiry (which had been litigated and decided below) in most of the space that remained. See Brief for Petitioner 17-37, 37-43; Brief for Respondents 18-47, 47-59.

In bypassing the question on which we granted certiorari to decide an issue not litigated below, the Court leaves respondents "without an unclouded opportunity to air the issue the Court today decides against them," Comcast Corp. v. Behrend, 569 U.S. ___, ___, 133 S.Ct. 1426, 1436, 185 L.Ed.2d 515 (2013) (GINSBURG and BREYER, JJ., dissenting). Doing so "does `not reflect well on the processes of the Court.'" Ibid. (quoting Redrup v. New York, 386 U.S. 767, 772, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) (Harlan, J., dissenting)). "And by resolving a complex and fact-intensive question without the benefit of full briefing, the Court invites the error into which it has fallen." 569 U.S., at ___, 133 S.Ct., at 1436.

The relevant facts are undeveloped because Daimler conceded at the start of this litigation that MBUSA is subject to general jurisdiction based on its California contacts. We therefore do not know the full extent of those contacts, though what little we do know suggests that Daimler was wise to concede what it did. MBUSA imports more than 200,000 vehicles into the United States and distributes many of them to independent dealerships in California, where they are sold. Declaration of Dr. Peter Waskönig in Bauman v. DaimlerChrysler Corp., No. 04-00194-RMW (N.D.Cal.), ¶ 10, p. 2. MBUSA's California sales account for 2.4% of Daimler's worldwide sales, which were $192 billion in [767] 2004.^[24] And 2.4% of $192 billion is $4.6 billion, a considerable sum by any measure. MBUSA also has multiple offices and facilities in California, including a regional headquarters.

But the record does not answer a number of other important questions. Are any of Daimler's key files maintained in MBUSA's California offices? How many employees work in those offices? Do those employees make important strategic decisions or oversee in any manner Daimler's activities? These questions could well affect whether Daimler is subject to general jurisdiction. After all, this Court upheld the exercise of general jurisdiction in Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447-448, 72 S.Ct. 413, 96 L.Ed. 485 (1952) — which the majority refers to as a "textbook case" of general jurisdiction, ante, at 755-756 — on the basis that the foreign defendant maintained an office in Ohio, kept corporate files there, and oversaw the company's activities from the State. California-based MBUSA employees may well have done similar things on Daimler's behalf.^[25] But because the Court decides the issue without a developed record, we will never know.

III

While the majority's decisional process is problematic enough, I fear that process leads it to an even more troubling result.

A

Until today, our precedents had established a straightforward test for general jurisdiction: Does the defendant have "continuous corporate operations within a state" that are "so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities"? International Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (asking whether defendant had "continuous and systematic general business contacts").^[26] In every case where we have applied this test, we have focused solely on the magnitude of the defendant's in-state contacts, not the relative magnitude of those contacts in comparison to the defendant's contacts with other States.

In Perkins, for example, we found an Ohio court's exercise of general jurisdiction [768] permissible where the president of the foreign defendant "maintained an office," "drew and distributed ... salary checks," used "two active bank accounts," "supervised... the rehabilitation of the corporation's properties in the Philippines," and held "directors' meetings," in Ohio. 342 U.S., at 447-448, 72 S.Ct. 413. At no point did we attempt to catalog the company's contacts in forums other than Ohio or to compare them with its Ohio contacts. If anything, we intimated that the defendant's Ohio contacts were not substantial in comparison to its contacts elsewhere. See id., at 438, 72 S.Ct. 413 (noting that the defendant's Ohio contacts, while "continuous and systematic," were but a "limited... part of its general business").^[27]

We engaged in the same inquiry in Helicopteros. There, we held that a Colombian corporation was not subject to general jurisdiction in Texas simply because it occasionally sent its employees into the State, accepted checks drawn on a Texas bank, and purchased equipment and services from a Texas company. In no sense did our analysis turn on the extent of the company's operations beyond Texas.

Most recently, in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011), our analysis again focused on the defendant's in-state contacts. Goodyear involved a suit against foreign tire manufacturers by North Carolina residents whose children had died in a bus accident in France. We held that North Carolina courts could not exercise general jurisdiction over the foreign defendants. Just as in Perkins and Helicopteros, our opinion in Goodyear did not identify the defendants' contacts outside of the forum State, but focused instead on the defendants' lack of offices, employees, direct sales, and business operations within the State.

This approach follows from the touchstone principle of due process in this field, the concept of reciprocal fairness. When a corporation chooses to invoke the benefits and protections of a State in which it operates, the State acquires the authority to subject the company to suit in its courts. See International Shoe, 326 U.S., at 319, 66 S.Ct. 154 ("[T]o the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state" such that an "obligatio[n] arise[s]" to respond there to suit); J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. ___, ___, 131 S.Ct. 2780, 2796-2797, 180 L.Ed.2d 765 (2011) (plurality opinion) (same principle for general jurisdiction). The majority's focus on the extent of a corporate defendant's out-of-forum contacts is untethered from this rationale. After all, the degree to which a company [769] intentionally benefits from a forum State depends on its interactions with that State, not its interactions elsewhere. An article on which the majority relies (and on which Goodyear relied as well, 564 U.S., at ___, 131 S.Ct., at 2853-2854) expresses the point well: "We should not treat defendants as less amenable to suit merely because they carry on more substantial business in other states.... [T]he amount of activity elsewhere seems virtually irrelevant to ... the imposition of general jurisdiction over a defendant." Brilmayer et al., A General Look at General Jurisdiction, 66 Texas L.Rev. 721, 742 (1988).

Had the majority applied our settled approach, it would have had little trouble concluding that Daimler's California contacts rise to the requisite level, given the majority's assumption that MBUSA's contacts may be attributed to Daimler and given Daimler's concession that those contacts render MBUSA "at home" in California. Our cases have long stated the rule that a defendant's contacts with a forum State must be continuous, substantial, and systematic in order for the defendant to be subject to that State's general jurisdiction. See Perkins, 342 U.S., at 446, 72 S.Ct. 413. We offered additional guidance in Goodyear, adding the phrase "essentially at home" to our prior formulation of the rule. 564 U.S., at ___, 131 S.Ct. at 2851 (a State may exercise general jurisdiction where a defendant's "affiliations with the State are so `continuous and systematic' as to render [the defendant] essentially at home in the forum State"). We used the phrase "at home" to signify that in order for an out-of-state defendant to be subject to general jurisdiction, its continuous and substantial contacts with a forum State must be akin to those of a local enterprise that actually is "at home" in the State. See Brilmayer, supra, at 742.^[28]

[770] Under this standard, Daimler's concession that MBUSA is subject to general jurisdiction in California (a concession the Court accepts, ante, at 758, 759) should be dispositive. For if MBUSA's California contacts are so substantial and the resulting benefits to MBUSA so significant as to make MBUSA "at home" in California, the same must be true of Daimler when MBUSA's contacts and benefits are viewed as its own. Indeed, until a footnote in its brief before this Court, even Daimler did not dispute this conclusion for eight years of the litigation.

B

The majority today concludes otherwise. Referring to the "continuous and systematic" contacts inquiry that has been taught to generations of first-year law students as "unacceptably grasping," ante, at 760, the majority announces the new rule that in order for a foreign defendant to be subject to general jurisdiction, it must not only possess continuous and systematic contacts with a forum State, but those contacts must also surpass some unspecified level when viewed in comparison to the company's "nationwide and worldwide" activities. Ante, at 762, n. 20.^[29]

Neither of the majority's two rationales for this proportionality requirement is persuasive. First, the majority suggests that its approach is necessary for the sake of predictability. Permitting general jurisdiction in every State where a corporation has continuous and substantial contacts, the majority asserts, would "scarcely permit out-of-state defendants `to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.'" Ante, at 762 (quoting Burger King Corp., 471 U.S., at 472, 105 S.Ct. 2174). But there is nothing unpredictable about a rule that instructs multinational corporations that if they engage in continuous and substantial contacts with more than one State, they will be subject to general jurisdiction in each one. The majority may not favor that rule as a matter of policy, but such disagreement does not render an otherwise routine test unpredictable.

Nor is the majority's proportionality inquiry any more predictable than the approach it rejects. If anything, the majority's approach injects an additional layer of uncertainty because a corporate defendant must now try to foretell a court's analysis as to both the sufficiency of its contacts with the forum State itself, as well as the relative sufficiency of those contacts in light of the company's operations elsewhere. Moreover, the majority does not even try to explain just how extensive the company's in-state contacts must be in the context of its global operations in order for general jurisdiction to be proper.

The majority's approach will also lead to greater unpredictability by radically expanding the scope of jurisdictional discovery. [771] Rather than ascertaining the extent of a corporate defendant's forum-state contacts alone, courts will now have to identify the extent of a company's contacts in every other forum where it does business in order to compare them against the company's in-state contacts. That considerable burden runs headlong into the majority's recitation of the familiar principle that "`[s]imple jurisdictional rules ... promote greater predictability.'" Ante, at 760-761 (quoting Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010)).

Absent the predictability rationale, the majority's sole remaining justification for its proportionality approach is its unadorned concern for the consequences. "If Daimler's California activities sufficed to allow adjudication of this Argentina-rooted case in California," the majority laments, "the same global reach would presumably be available in every other State in which MBUSA's sales are sizable." Ante, at 761.

The majority characterizes this result as "exorbitant," ibid., but in reality it is an inevitable consequence of the rule of due process we set forth nearly 70 years ago, that there are "instances in which [a company's] continuous corporate operations within a state" are "so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities," International Shoe, 326 U.S., at 318, 66 S.Ct. 154. In the era of International Shoe, it was rare for a corporation to have such substantial nationwide contacts that it would be subject to general jurisdiction in a large number of States. Today, that circumstance is less rare. But that is as it should be. What has changed since International Shoe is not the due process principle of fundamental fairness but rather the nature of the global economy. Just as it was fair to say in the 1940's that an out-of-state company could enjoy the benefits of a forum State enough to make it "essentially at home" in the State, it is fair to say today that a multinational conglomerate can enjoy such extensive benefits in multiple forum States that it is "essentially at home" in each one.

In any event, to the extent the majority is concerned with the modern-day consequences of International Shoe's conception of personal jurisdiction, there remain other judicial doctrines available to mitigate any resulting unfairness to large corporate defendants. Here, for instance, the reasonableness prong may afford petitioner relief. See supra, at 764-765. In other cases, a defendant can assert the doctrine of forum non conveniens if a given State is a highly inconvenient place to litigate a dispute. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). In still other cases, the federal change of venue statute can provide protection. See 28 U.S.C. § 1404(a) (permitting transfers to other districts "[f]or the convenience of parties and witnesses" and "in the interests of justice"). And to the degree that the majority worries these doctrines are not enough to protect the economic interests of multinational businesses (or that our longstanding approach to general jurisdiction poses "risks to international comity," ante, at 762), the task of weighing those policy concerns belongs ultimately to legislators, who may amend state and federal long-arm statutes in accordance with the democratic process. Unfortunately, the majority short circuits that process by enshrining today's narrow rule of general jurisdiction as a matter of constitutional law.

C

The majority's concern for the consequences of its decision should have led it [772] the other way, because the rule that it adopts will produce deep injustice in at least four respects.

First, the majority's approach unduly curtails the States' sovereign authority to adjudicate disputes against corporate defendants who have engaged in continuous and substantial business operations within their boundaries.^[30] The majority does not dispute that a State can exercise general jurisdiction where a corporate defendant has its corporate headquarters, and hence its principal place of business within the State. Cf. Hertz Corp., 559 U.S., at 93, 130 S.Ct. 1181. Yet it never explains why the State should lose that power when, as is increasingly common, a corporation "divide[s] [its] command and coordinating functions among officers who work at several different locations." Id., at 95-96, 130 S.Ct. 1181. Suppose a company divides its management functions equally among three offices in different States, with one office nominally deemed the company's corporate headquarters. If the State where the headquarters is located can exercise general jurisdiction, why should the other two States be constitutionally forbidden to do the same? Indeed, under the majority's approach, the result would be unchanged even if the company has substantial operations within the latter two States (and even if the company has no sales or other business operations in the first State). Put simply, the majority's rule defines the Due Process Clause so narrowly and arbitrarily as to contravene the States' sovereign prerogative to subject to judgment defendants who have manifested an unqualified "intention to benefit from and thus an intention to submit to the[ir] laws," J. McIntyre, 564 U.S., at ___, 131 S.Ct., at 2787 (plurality opinion).

Second, the proportionality approach will treat small businesses unfairly in comparison to national and multinational conglomerates. Whereas a larger company will often be immunized from general jurisdiction in a State on account of its extensive contacts outside the forum, a small business will not be. For instance, the majority holds today that Daimler is not subject to general jurisdiction in California despite its multiple offices, continuous operations, and billions of dollars' worth of sales there. But imagine a small business that manufactures luxury vehicles principally targeting the California market and that has substantially all of its sales and operations in the State — even though those sales and operations may amount to one-thousandth of Daimler's. Under the majority's rule, that small business will be subject to suit in California on any cause of action involving any of its activities anywhere in the world, while its far more pervasive competitor, Daimler, will not be. That will be so even if the small business incorporates and sets up its headquarters elsewhere (as Daimler does), since the small business' California sales and operations would still predominate when "apprais[ed]" in proportion to its minimal "nationwide and worldwide" operations, ante, at 762, n. 20.

Third, the majority's approach creates the incongruous result that an individual defendant whose only contact with a forum State is a one-time visit will be subject to general jurisdiction if served with process during that visit, Burnham v. Superior Court of Cal., County of Marin, 495 U.S. [773] 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990), but a large corporation that owns property, employs workers, and does billions of dollars' worth of business in the State will not be, simply because the corporation has similar contacts elsewhere (though the visiting individual surely does as well).

Finally, it should be obvious that the ultimate effect of the majority's approach will be to shift the risk of loss from multinational corporations to the individuals harmed by their actions. Under the majority's rule, for example, a parent whose child is maimed due to the negligence of a foreign hotel owned by a multinational conglomerate will be unable to hold the hotel to account in a single U.S. court, even if the hotel company has a massive presence in multiple States. See, e.g., Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264 (C.A.11 2002).^[31] Similarly, a U.S. business that enters into a contract in a foreign country to sell its products to a multinational company there may be unable to seek relief in any U.S. court if the multinational company breaches the contract, even if that company has considerable operations in numerous U.S. forums. See, e.g., Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivianos, 712 F.Supp. 383 (S.D.N.Y.1989).^[32] Indeed, the majority's approach would preclude the plaintiffs in these examples from seeking recourse anywhere in the United States even if no other judicial system was available to provide relief. I cannot agree with the majority's conclusion that the Due Process Clause requires these results.

* * *

The Court rules against respondents today on a ground that no court has considered in the history of this case, that this Court did not grant certiorari to decide, and that Daimler raised only in a footnote of its brief. In doing so, the Court adopts a new rule of constitutional law that is unmoored from decades of precedent. Because I would reverse the Ninth Circuit's decision on the narrower ground that the exercise of jurisdiction over Daimler would be unreasonable in any event, I respectfully concur in the judgment only.

[1] One plaintiff is a resident of Argentina and a citizen of Chile; all other plaintiffs are residents and citizens of Argentina.

[2] Daimler was restructured in 2007 and is now known as Daimler AG. No party contends that any postsuit corporate reorganization bears on our disposition of this case. This opinion refers to members of the Daimler corporate family by the names current at the time plaintiffs filed suit.

[3] At times relevant to this suit, MBUSA was wholly owned by Daimler-Chrysler North America Holding Corporation, a Daimler subsidiary.

[4] International Shoe was an action by the State of Washington to collect payments to the State's unemployment fund. Liability for the payments rested on in-state activities of resident sales solicitors engaged by the corporation to promote its wares in Washington. See 326 U.S., at 313-314, 66 S.Ct. 154.

[5] Colloquy at oral argument illustrated the respective provinces of general and specific jurisdiction over persons. Two hypothetical scenarios were posed: First, if a California plaintiff, injured in a California accident involving a Daimler-manufactured vehicle, sued Daimler in California court alleging that the vehicle was defectively designed, that court's adjudicatory authority would be premised on specific jurisdiction. See Tr. of Oral Arg. 11 (Daimler's counsel acknowledged that specific jurisdiction "may well be ... available" in such a case, depending on whether Daimler purposefully availed itself of the forum). Second, if a similar accident took place in Poland and injured Polish plaintiffs sued Daimler in California court, the question would be one of general jurisdiction. See id., at 29 (on plaintiffs' view, Daimler would be amenable to such a suit in California).

[6] See Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) ("The immediate effect of [International Shoe's] departure from Pennoyer's conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction over nonresident defendants."); McGee v. International Life Ins. Co., 355 U.S. 220, 222, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) ("[A] trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents."). For an early codification, see Uniform Interstate and International Procedure Act § 1.02 (describing jurisdiction based on "[e]nduring [r]elationship" to encompass a person's domicile or a corporation's place of incorporation or principal place of business, and providing that "any ... claim for relief" may be brought in such a place), § 1.03 (describing jurisdiction "[b]ased upon [c]onduct," limited to claims arising from the enumerated acts, e.g., "transacting any business in th[e] state," "contracting to supply services or things in th[e] state," or "causing tortious injury by an act or omission in th[e] state"), 9B U.L.A. 308, 310 (1966).

[7] See, e.g., Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (opinion of O'Connor, J.) (specific jurisdiction may lie over a foreign defendant that places a product into the "stream of commerce" while also "designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State"); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ("[I]f the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others."); Calder v. Jones, 465 U.S. 783, 789-790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (California court had specific jurisdiction to hear suit brought by California plaintiff where Florida-based publisher of a newspaper having its largest circulation in California published an article allegedly defaming the complaining Californian; under those circumstances, defendants "must `reasonably anticipate being haled into [a California] court'"); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780-781, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (New York resident may maintain suit for libel in New Hampshire state court against California-based magazine that sold 10,000 to 15,000 copies in New Hampshire each month; as long as the defendant "continuously and deliberately exploited the New Hampshire market," it could reasonably be expected to answer a libel suit there).

[8] Selectively referring to the trial court record in Perkins (as summarized in an opinion of the intermediate appellate court), Justice SOTOMAYOR posits that Benguet may have had extensive operations in places other than Ohio. See post, at 769-770, n. 8 (opinion concurring in judgment) ("By the time the suit [in Perkins] was commenced, the company had resumed its considerable operations in the Philippines," "rebuilding its properties there" and "purchasing machinery, supplies and equipment." (internal quotation marks omitted)). See also post, at 767, n. 5 (many of the corporation's "key management decisions" were made by the out-of-state purchasing agent and chief of staff). Justice SOTOMAYOR's account overlooks this Court's opinion in Perkins and the point on which that opinion turned: All of Benguet's activities were directed by the company's president from within Ohio. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447-448, 72 S.Ct. 413, 96 L.Ed. 485 (1952) (company's Philippine mining operations "were completely halted during the occupation ... by the Japanese"; and the company's president, from his Ohio office, "supervised policies dealing with the rehabilitation of the corporation's properties in the Philippines and ... dispatched funds to cover purchases of machinery for such rehabilitation"). On another day, Justice SOTOMAYOR joined a unanimous Court in recognizing: "To the extent that the company was conducting any business during and immediately after the Japanese occupation of the Philippines, it was doing so in Ohio...." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, ___, 131 S.Ct. 2846, 2856, 180 L.Ed.2d 796 (2011). Given the wartime circumstances, Ohio could be considered "a surrogate for the place of incorporation or head office." von Mehren & Trautman 1144. See also ibid. (Perkins "should be regarded as a decision on its exceptional facts, not as a significant reaffirmation of obsolescing notions of general jurisdiction" based on nothing more than a corporation's "doing business" in a forum).

Justice SOTOMAYOR emphasizes Perkins' statement that Benguet's Ohio contacts, while "continuous and systematic," were but a "limited ... part of its general business." 342 U.S., at 438, 72 S.Ct. 413. Describing the company's "wartime activities" as "necessarily limited," id., at 448, 72 S.Ct. 413, however, this Court had in mind the diminution in operations resulting from the Japanese occupation and the ensuing shutdown of the company's Philippine mines. No fair reader of the full opinion in Perkins could conclude that the Court meant to convey anything other than that Ohio was the center of the corporation's wartime activities. But cf. post, at 768 ("If anything, [Perkins] intimated that the defendant's Ohio contacts were not substantial in comparison to its contacts elsewhere.").

[9] See generally von Mehren & Trautman 1177-1179. See also Twitchell, The Myth of General Jurisdiction, 101 Harv. L.Rev. 610, 676 (1988) ("[W]e do not need to justify broad exercises of dispute-blind jurisdiction unless our interpretation of the scope of specific jurisdiction unreasonably limits state authority over nonresident defendants."); Borchers, The Problem With General Jurisdiction, 2001 U. Chi. Legal Forum 119, 139 ("[G]eneral jurisdiction exists as an imperfect safety valve that sometimes allows plaintiffs access to a reasonable forum in cases when specific jurisdiction would deny it.").

[10] Remarkably, Justice SOTOMAYOR treats specific jurisdiction as though it were barely there. Given the many decades in which specific jurisdiction has flourished, it would be hard to conjure up an example of the "deep injustice" Justice SOTOMAYOR predicts as a consequence of our holding that California is not an all-purpose forum for suits against Daimler. Post, at 771. Justice SOTOMAYOR identifies "the concept of reciprocal fairness" as the "touchstone principle of due process in this field." Post, at 768 (citing International Shoe, 326 U.S., at 319, 66 S.Ct. 154). She overlooks, however, that in the very passage of International Shoe on which she relies, the Court left no doubt that it was addressing specific — not general — jurisdiction. See id., at 319, 66 S.Ct. 154 ("The exercise of th[e] privilege [of conducting corporate activities within a State] may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue." (emphasis added)).

[11] As the Court made plain in Goodyear and repeats here, general jurisdiction requires affiliations "so `continuous and systematic' as to render [the foreign corporation] essentially at home in the forum State." 564 U.S., at ___, 131 S.Ct., at 2851, i.e., comparable to a domestic enterprise in that State.

[12] MBUSA is not a defendant in this case.

[13] Agency relationships, we have recognized, may be relevant to the existence of specific jurisdiction. "[T]he corporate personality," International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), observed, "is a fiction, although a fiction intended to be acted upon as though it were a fact." Id., at 316, 66 S.Ct. 154. See generally 1 W. Fletcher, Cyclopedia of the Law of Corporations § 30, p. 30 (Supp.2012-2013) ("A corporation is a distinct legal entity that can act only through its agents."). As such, a corporation can purposefully avail itself of a forum by directing its agents or distributors to take action there. See, e.g., Asahi, 480 U.S., at 112, 107 S.Ct. 1026 (opinion of O'Connor, J.) (defendant's act of "marketing [a] product through a distributor who has agreed to serve as the sales agent in the forum State" may amount to purposeful availment); International Shoe, 326 U.S., at 318, 66 S.Ct. 154 ("the commission of some single or occasional acts of the corporate agent in a state" may sometimes "be deemed sufficient to render the corporation liable to suit" on related claims). See also Brief for Petitioner 24 (acknowledging that "an agency relationship may be sufficient in some circumstances to give rise to specific jurisdiction"). It does not inevitably follow, however, that similar reasoning applies to general jurisdiction. Cf. Goodyear, 564 U.S., at ___, 131 S.Ct., at 2855 (faulting analysis that "elided the essential difference between case-specific and all-purpose (general) jurisdiction").

[14] Indeed, plaintiffs do not defend this aspect of the Ninth Circuit's analysis. See Brief for Respondents 39, n. 18 ("We do not believe that this gloss is particularly helpful.").

[15] The Ninth Circuit's agency analysis also looked to whether the parent enjoys "the right to substantially control" the subsidiary's activities. Bauman v. DaimlerChrysler Corp., 644 F.3d 909, 924 (2011). The Court of Appeals found the requisite "control" demonstrated by the General Distributor Agreement between Daimler and MBUSA, which gives Daimler the right to oversee certain of MBUSA's operations, even though that agreement expressly disavowed the creation of any agency relationship. Thus grounded, the separate inquiry into control hardly curtails the overbreadth of the Ninth Circuit's agency holding.

[16] By addressing this point, Justice SOTOMAYOR asserts, we have strayed from the question on which we granted certiorari to decide an issue not argued below. Post, at 765-766. That assertion is doubly flawed. First, the question on which we granted certiorari, as stated in Daimler's petition, is "whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State." Pet. for Cert. i. That question fairly encompasses an inquiry into whether, in light of Goodyear, Daimler can be considered at home in California based on MBUSA's in-state activities. See also this Court's Rule 14.1(a) (a party's statement of the question presented "is deemed to comprise every subsidiary question fairly included therein"). Moreover, both in the Ninth Circuit, see, e.g., Brief for Federation of German Industries et al. as Amici Curiae in No. 07-15386(CA9), p. 3, and in this Court, see, e.g., U.S. Brief 13-18; Brief for Chamber of Commerce of United States of America et al. as Amici Curiae 6-23; Brief for Lea Brilmayer as Amica Curiae 10-12, amici in support of Daimler homed in on the insufficiency of Daimler's California contacts for general jurisdiction purposes. In short, and in light of our pathmarking opinion in Goodyear, we perceive no unfairness in deciding today that California is not an all-purpose forum for claims against Daimler.

[17] International Shoe also recognized, as noted above, see supra, at 753-754, that "some single or occasional acts of the corporate agent in a state ..., because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit." 326 U.S., at 318, 66 S.Ct. 154.

[18] Plaintiffs emphasize two decisions, Barrow S.S. Co. v. Kane, 170 U.S. 100, 18 S.Ct. 526, 42 L.Ed. 964 (1898), and Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915 (1917) (Cardozo, J.), both cited in Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), just after the statement that a corporation's continuous operations in-state may suffice to establish general jurisdiction. Id., at 446, and n. 6, 72 S.Ct. 413. See also International Shoe, 326 U.S., at 318, 66 S.Ct. 154 (citing Tauza). Barrow and Tauza indeed upheld the exercise of general jurisdiction based on the presence of a local office, which signaled that the corporation was "doing business" in the forum. Perkins' unadorned citations to these cases, both decided in the era dominated by Pennoyer's territorial thinking, see supra, at 753-754, should not attract heavy reliance today. See generally Feder, Goodyear, "Home," and the Uncertain Future of Doing Business Jurisdiction, 63 S.C. L.Rev. 671 (2012) (questioning whether "doing business" should persist as a basis for general jurisdiction).

[19] We do not foreclose the possibility that in an exceptional case, see, e.g., Perkins, described supra, at 755-757, and n. 8, a corporation's operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State. But this case presents no occasion to explore that question, because Daimler's activities in California plainly do not approach that level. It is one thing to hold a corporation answerable for operations in the forum State, see infra, at 763, quite another to expose it to suit on claims having no connection whatever to the forum State.

[20] To clarify in light of Justice SOTOMAYOR's opinion concurring in the judgment, the general jurisdiction inquiry does not "focu[s] solely on the magnitude of the defendant's in-state contacts." Post, at 767. General jurisdiction instead calls for an appraisal of a corporation's activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, "at home" would be synonymous with "doing business" tests framed before specific jurisdiction evolved in the United States. See von Mehren & Trautman 1142-1144. Nothing in International Shoe and its progeny suggests that "a particular quantum of local activity" should give a State authority over a "far larger quantum of ... activity" having no connection to any in-state activity. Feder, supra, at 694.

Justice SOTOMAYOR would reach the same result, but for a different reason. Rather than concluding that Daimler is not at home in California, Justice SOTOMAYOR would hold that the exercise of general jurisdiction over Daimler would be unreasonable "in the unique circumstances of this case." Post, at 763. In other words, she favors a resolution fit for this day and case only. True, a multipronged reasonableness check was articulated in Asahi, 480 U.S., at 113-114, 107 S.Ct. 1026, but not as a free-floating test. Instead, the check was to be essayed when specific jurisdiction is at issue. See also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). First, a court is to determine whether the connection between the forum and the episode-in-suit could justify the exercise of specific jurisdiction. Then, in a second step, the court is to consider several additional factors to assess the reasonableness of entertaining the case. When a corporation is genuinely at home in the forum State, however, any second-step inquiry would be superfluous.

Justice SOTOMAYOR fears that our holding will "lead to greater unpredictability by radically expanding the scope of jurisdictional discovery." Post, at 770-771. But it is hard to see why much in the way of discovery would be needed to determine where a corporation is at home. Justice SOTOMAYOR's proposal to import Asahi's "reasonableness" check into the general jurisdiction determination, on the other hand, would indeed compound the jurisdictional inquiry. The reasonableness factors identified in Asahi include "the burden on the defendant," "the interests of the forum State," "the plaintiff's interest in obtaining relief," "the interstate judicial system's interest in obtaining the most efficient resolution of controversies," "the shared interest of the several States in furthering fundamental substantive social policies," and, in the international context, "the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction." 480 U.S., at 113-115, 107 S.Ct. 1026 (some internal quotation marks omitted). Imposing such a checklist in cases of general jurisdiction would hardly promote the efficient disposition of an issue that should be resolved expeditiously at the outset of litigation.

[21] The Courts of Appeals have uniformly held that the reasonableness prong does in fact apply in the general jurisdiction context. See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 573 (C.A.2 1996) ("[E]very circuit that has considered the question has held, implicitly or explicitly, that the reasonableness inquiry is applicable to all questions of personal jurisdiction, general or specific"); see also, e.g., Lakin v. Prudential Securities, Inc., 348 F.3d 704, 713 (C.A.8 2003); Base Metal Trading, Ltd. v. OJSC "Novokuznetsky Aluminum Factory," 283 F.3d 208, 213-214 (C.A.4 2002); Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1533 (C.A.10 1996); Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F.3d 848, 851, n. 2 (C.A.9 1993); Donatelli v. National Hockey League, 893 F.2d 459, 465 (C.A.1 1990); Bearry v. Beech Aircraft Corp., 818 F.2d 370, 377 (C.A.5 1987). Without the benefit of a single page of briefing on the issue, the majority casually adds each of these cases to the mounting list of decisions jettisoned as a consequence of today's ruling. See ante, at 762, n. 20.

[22] While our decisions rejecting the exercise of personal jurisdiction have typically done so under the minimum-contacts prong, we have never required that prong to be decided first. See Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, 121, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (Stevens, J., concurring in part and concurring in judgment) (rejecting personal jurisdiction under the reasonableness prong and declining to consider the minimum-contacts prong because doing so would not be "necessary"). And although the majority frets that deciding this case on the reasonableness ground would be "a resolution fit for this day and case only," ante, at 762, n. 20, I do not understand our constitutional duty to require otherwise.

[23] The majority appears to suggest that Daimler may have presented the argument in its petition for rehearing en banc before the Ninth Circuit. See ante, at 752 (stating that Daimler "urg[ed] that the exercise of personal jurisdiction ... could not be reconciled with this Court's decision in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011)"). But Daimler's petition for rehearing did not argue what the Court holds today. The Court holds that Daimler's California contacts would be insufficient for general jurisdiction even assuming that MBUSA's contacts may be attributed to Daimler. Daimler's rehearing petition made a distinct argument — that attribution of MBUSA's contacts should not be permitted under an "`agency' theory" because doing so would "rais[e] significant constitutional concerns" under Goodyear. Petition for Rehearing or Rehearing En Banc in No. 07-15386(CA9), p. 9.

[24] See DaimlerChrysler, Innovations for our Customers: Annual Report 2004, p. 22, http://www.daimler.com/Projects/c2c/channel/documents/1364377_2004_DaimlerChrysler_Annual_Report.pdf (as visited on Jan. 8, 2014, and available in Clerk of Court's case file).

[25] To be sure, many of Daimler's key management decisions are undoubtedly made by employees outside California. But the same was true in Perkins. See Perkins v. Benguet Consol. Min. Co., 88 Ohio App. 118, 124, 95 N.E.2d 5, 8 (1950) (per curiam) (describing management decisions made by the company's chief of staff in Manila and a purchasing agent in California); see also n. 8, infra.

[26] While Helicopteros formulated the general jurisdiction inquiry as asking whether a foreign defendant possesses "continuous and systematic general business contacts," 466 U.S., at 416, 104 S.Ct. 1868, the majority correctly notes, ante, at 760, that International Shoe used the phrase "continuous and systematic" in the context of discussing specific jurisdiction, 326 U.S., at 317, 66 S.Ct. 154. But the majority recognizes that International Shoe separately described the type of contacts needed for general jurisdiction as "continuous corporate operations" that are "so substantial" as to justify suit on unrelated causes of action. Id., at 318, 66 S.Ct. 154. It is unclear why our precedents departed from International Shoe's "continuous and substantial" formulation in favor of the "continuous and systematic" formulation, but the majority does not contend — nor do I perceive — that there is a material difference between the two.

[27] The majority suggests that I misinterpret language in Perkins that I do not even cite. Ante, at 756, n. 8. The majority is quite correct that it has found a sentence in Perkins that does not address whether most of the Philippine corporation's activities took place outside of Ohio. See ante, at 756, n. 8 (noting that Perkins described the company's "wartime activities" as "necessarily limited," 342 U.S., at 448, 72 S.Ct. 413). That is why I did not mention it. I instead rely on a sentence in Perkins' opening paragraph: "The [Philippine] corporation has been carrying on in Ohio a continuous and systematic, but limited, part of its general business." Id., at 438, 72 S.Ct. 413. That sentence obviously does convey that most of the corporation's activities occurred in "places other than Ohio," ante, at 756, n. 8. This is not surprising given that the company's Ohio contacts involved a single officer working from a home office, while its non-Ohio contacts included significant mining properties and machinery operated throughout the Philippines, Philippine employees (including a chief of staff), a purchasing agent based in California, and board of directors meetings held in Washington, New York, and San Francisco. Perkins, 88 Ohio App., at 123-124, 95 N.E.2d, at 8; see also n. 8, infra.

[28] The majority views the phrase "at home" as serving a different purpose — that of requiring a comparison between a defendant's in-state and out-of-state contacts. Ante, at 761, n. 20. That cannot be the correct understanding though, because among other things it would cast grave doubt on Perkins — a case that Goodyear pointed to as an exemplar of general jurisdiction, 564 U.S., at ___, 131 S.Ct., at 2855-2856. For if Perkins had applied the majority's newly minted proportionality test, it would have come out the other way.

The majority apparently thinks that the Philippine corporate defendant in Perkins did not have meaningful operations in places other than Ohio. See ante, at 755-756, and n. 8. But one cannot get past the second sentence of Perkins before realizing that is wrong. That sentence reads: "The corporation has been carrying on in Ohio a continuous and systematic, but limited, part of its general business." 342 U.S., at 438, 72 S.Ct. 413. Indeed, the facts of the case set forth by the Ohio Court of Appeals show just how "limited" the company's Ohio contacts — which included a single officer keeping files and managing affairs from his Ohio home office — were in comparison with its "general business" operations elsewhere. By the time the suit was commenced, the company had resumed its considerable mining operations in the Philippines, "`rebuilding its properties'" there and purchasing "`machinery, supplies and equipment.'" 88 Ohio App., at 123-124, 95 N.E.2d, at 8. Moreover, the company employed key managers in other forums, including a purchasing agent in San Francisco and a chief of staff in the Philippines. Id., at 124, 95 N.E.2d, at 8. The San Francisco purchasing agent negotiated the purchase of the company's machinery and supplies "`on the direction of the Company's Chief of Staff in Manila,'" ibid., a fact that squarely refutes the majority's assertion that "[a]ll of Benguet's activities were directed by the company's president from within Ohio," ante, at 756, n. 8. And the vast majority of the company's board of directors meetings took place outside Ohio, in locations such as Washington, New York, and San Francisco. 88 Ohio App., at 125, 95 N.E.2d, at 8.

In light of these facts, it is all but impossible to reconcile the result in Perkins with the proportionality test the majority announces today. Goodyear's use of the phrase "at home" is thus better understood to require the same general jurisdiction inquiry that Perkins required: An out-of-state business must have the kind of continuous and substantial in-state presence that a parallel local company would have.

[29] I accept at face value the majority's declaration that general jurisdiction is not limited to a corporation's place of incorporation and principal place of business because "a corporation's operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in the State." Ante, at 761, n. 19; see also ante, at 761. Were that not so, our analysis of the defendants' in-state contacts in Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and Goodyear would have been irrelevant, as none of the defendants in those cases was sued in its place of incorporation or principal place of business.

[30] States will of course continue to exercise specific jurisdiction in many cases, but we have never held that to be the outer limit of the States' authority under the Due Process Clause. That is because the two forms of jurisdiction address different concerns. Whereas specific jurisdiction focuses on the relationship between a defendant's challenged conduct and the forum State, general jurisdiction focuses on the defendant's substantial presence in the State irrespective of the location of the challenged conduct.

[31] See also, e.g., Woods v. Nova Companies Belize Ltd., 739 So.2d 617, 620-621 (Fla.App. 1999) (estate of decedent killed in an overseas plane crash permitted to sue responsible Belizean corporate defendant in Florida courts, rather than Belizean courts, based on defendant's continuous and systematic business contacts in Florida).

[32] The present case and the examples posited involve foreign corporate defendants, but the principle announced by the majority would apply equally to preclude general jurisdiction over a U.S. company that is incorporated and has its principal place of business in another U.S. State. Under the majority's rule, for example, a General Motors autoworker who retires to Florida would be unable to sue GM in that State for disabilities that develop from the retiree's labor at a Michigan parts plant, even though GM undertakes considerable business operations in Florida. See Twitchell, The Myth of General Jurisdiction, 101 Harv. L.Rev. 610, 670 (1988).

Frank K. Warnock, Greenup, for appellant.

Charles M. Daniels, Greenup, for appellee.

C. R. WALDEN, Special Commissioner.

Appellant, plaintiff below, prosecutes this appeal from a summary judgment against her, in her capacity as personal representative, in an action to recover damages for the wrongful death of her decedent.

On September 9, 1967, appellant's decedent, while a guest passenger in an automobile owned and operated by appellee, was killed in a traffic accident north of Portsmouth, Ohio, on U.S. Route No. 23, a four-lane divided highway. Appellant administratrix filed suit in the Greenup County Circuit Court seeking to recover damages for the wrongful death of deceased and burial expenses, alleging both ordinary and gross negligence in the operation of the automobile by appellee. Appellee was before the court on personal service.

Appellee answered the suit, and, among other matters, pleaded section 4515.02 of the Ohio Revised Code, commonly known as the Guest Statute, which provides, in substance, that a nonpaying guest cannot recover damages for injury or death from the owner-operator of a motor vehicle, unless [828] such injuries or death are caused by the wilful or wanton misconduct of such operator, owner, or person responsible for the operation of said motor vehicle.

Appellee's deposition revealed that he was forty-seven years of age, both he and decedent were divorced and both of them were employed by the C & O Railroad and worked in the same office at Russell, in Greenup County, Kentucky. They had been so associated in this work for several years. The deceased, Mrs. Stringer, had lived all her life in Greenup County, Kentucky. Appellee, for a while in the 1930's, had lived in Greenup County, but at the time of the accident, and for several years prior thereto, he had lived in Portsmouth, Ohio, across the Ohio River from Russell, Kentucky. Appellee made his home with his parents in Portsmouth, voted, paid taxes, licensed his automobile, and did his banking and other such activities as would indicate legal domicile in the State of Ohio. In fact, counsel are agreed that at the time of the accident on September 9, 1967, appellee was legally domiciled in the State of Ohio. Over the years, for convenience, appellee had often stayed at the Russell Y.M.C.A. For about one year prior to the accident appellee had kept a room rented at the "Y" by the week. He stayed in this room about two nights a week, on the average. Appellee and Mrs. Stringer had been dating for several months. The day before the fatal accident they played golf. At this time it was planned and agreed that the next day they would go to Columbus, Ohio. Appellee was to transact some business, the deceased wanted to shop, they would have dinner, go to a show or the races, and return to Russell the night of the same day. Pursuant to this plan, appellee spent the night in his room at the "Y" and the next morning, drove his 1966 Dodge automobile, picked up decedent at her home and they proceeded on their journey to Columbus, Ohio. It was raining and the highway was wet. They were traveling on U.S. Highway No. 23, a four-lane highway, two lanes north and two lanes south, divided by a twelve-foot grassed median. A short distance north of Portsmouth, appellee, in attempting to pass a vehicle, lost control of his automobile and crossed the median into the path or lane of a vehicle going south on the highway. Mrs. Stringer and the driver of this southbound vehicle were killed.

Both appellant and appellee filed motions for summary judgment. The trial court overruled appellant's motion and sustained appellee's motion and dismissed the complaint. The basis of the trial court's ruling is as stated in the court's findings of fact and conclusions of law that the Guest Statute of the State of Ohio should apply, and there being no evidence of any wilful or wanton misconduct on the part of appellee, as a matter of law appellant could not recover.

The question to be determined is whether the law of Ohio or the law of Kentucky applies in this case.

Counsel for appellee recognizes that in the case of Wessling v. Paris, Ky., 417 S. W.2d 259 (1967), we very substantially departed from the age-old and almost universal doctrine that liability for torts was governed by the law of the place where the tort occurred (lex loci delicti), as stated in Ansback v. Greenberg, Ky., 256 S.W.2d 1 (1952). In Wessling we stressed the fact that to continue to follow the old rule, though simple, avoids and ignores the necessity of examining the true relationship of the parties and other considerations which may well be more consonant with a proper and just result. In Wessling, as appellee points out, we recognized that the facts of that case presented a simple case and no common sense reason could be advanced for holding otherwise, but for the time being we would limit the application of the rule to very clear cases, such as were the facts in Wessling. We never intended to hold that the rule never again would be extended or applied unless the facts were identical with the facts in Wessling.

In the case of Arnett v. Thompson, Ky., 433 S.W.2d 109 (1968), a couple of Ohio [829] residents, husband and wife, were involved in an automobile accident in Kentucky. The wife sued her husband to recover damages for her personal injuries. The husband, claiming the law of the State of Ohio was applicable, pleaded the Ohio Guest Statute and in addition thereto pleaded the common law of Ohio which denied the wife the right to sue her husband for a tort, thus raising a "double barrel" conflict question. In denying the husband's argument, we held that the conflicts question should not be determined on the basis of "weighing of interest" as we had done in Wessling, but on the basis of whether Kentucky had "enough" or "sufficient" contacts to justify applying Kentucky law. We thus held the fact that the accident occurred in Kentucky was, standing alone, enough contact to justify the application of the law of Kentucky. In considering our opinions in Wessling and Arnett, it may be proper to raise the question if we have accepted the rule of "most significant contacts" (Restatement of Law 2d, Conflicts of Law 2d, section 146) to apply to Kentucky residents involved in another state and the rule of "enough contacts" for residents of other states involved in Kentucky. Such is not the holding or policy of this court.

It is correct to say that we have abandoned the pure lex loci rule as enunciated in Ansback v. Greenberg, Ky., 256 S.W.2d 1 (1952), and numerous prior decisions, for the simple reason that it is unfair and unjust to defeat the legitimate and reasonable rights of the parties, without regard to the circumstances and facts of the particular case, and in order to follow an antiquated rule of law that is now, and always has been, highly controversial. Cases from other jurisdictions, articles found in the Law Journals, and articles by commentators, indicate that the courts are getting away from the strict application of the lex loci rule. In so doing all sorts of legal theories are relied upon.

When the court has jurisdiction of the parties its primary responsibility is to follow its own substantive law. The basic law is the law of the forum, which should not be displaced without valid reasons. We have not, therefore, tried to adopt a rule, or rules, for all cases of this kind which may come before us.

In the case at bar, contacts with Kentucky were numerous and significant. Decedent was a lifelong resident of Kentucky. While appellee was a resident of Ohio, he kept a rented room near his work in Kentucky, stayed in it on the average of two nights per week and all his employment and most of his social relationships were in Kentucky. The fatal journey began in Kentucky and was to have been concluded in Kentucky.

So we conclude that the reasons appellee here advances, that the accident occurred in the State of Ohio and that appellee was domiciled and had a residence in that state, are not sufficient in view of the contacts the State of Kentucky had with the parties to justify the displacement of the law of this forum with the law of the State of Ohio. We are now reaffirming our position taken in Wessling v. Paris, supra, that if there are significant contacts — not necessarily the most significant contacts — with Kentucky, the Kentucky law should be applied.

The judgment is reversed and the case remanded for proceedings consistent with this opinion.

STEINFELD, C. J., and HILL, PALMORE and NEIKIRK, JJ., concur.

OSBORNE, REED and MILLIKEN, JJ., dissent.

OSBORNE, Judge (dissenting).

I respectfully dissent for the reasons shown in the dissenting opinion of Wessling v. Paris, Ky., 417 S.W.2d 259 (1967).

[830] REED, Judge (dissenting).

I respectfully dissent from the majority opinion but for reasons different from the one given by Judge Osborne in his dissent. That dissent, as I understand it, is based upon the sole proposition that the law of the place of the tort should be uniformly applied without exception. In my view, the modern trend of authority and the clear preponderance of judicial decisions of recent vintage have rejected the principle that the law of the place of the tort is an immutable, inflexible fiat by which the forum jurisdiction is bound. The rule advocated by Judge Osborne has the virtue of simplicity and promotes predictability, but with the modern weight of authority so clearly to the contrary it is my conclusion that the admittedly desirable elements of simplicity and predictability must yield to overriding policy considerations to achieve more realistic results. These results are just because they are realistic.

In my opinion, nevertheless, the pertinent issues are under what circumstances and to what extent must these elements of simplicity and predictability yield. The recent developments in the law applicable to the problem in this jurisdiction have served to obfuscate rather than to clarify what a local court should do when it is confronted with the necessity of a choice of law between that of this jurisdiction and of a foreign jurisdiction. The situation posed in the instant case is an excellent example of the general problem cast in the setting of a recurring type of specific event.

The majority opinion recites that in this wrongful death action, instituted in a Kentucky court, the plaintiff's decedent was a resident of and domiciled in Kentucky. It also frankly admits that the defendant was a resident of and domiciled in Ohio. The trip which ultimately resulted in the tragedy commenced in Kentucky and was intended to end in Kentucky. The party whose conduct is asserted to have been negligent and caused injury on an Ohio highway was a resident of and domiciled in that state at the time of the occurrence of both the conduct and the injury upon which this action is based.

From reading the opinions of this court in the cases of Wessling v. Paris, Ky., 417 S.W.2d 259 (1967), and Arnett v. Thompson, Ky., 433 S.W.2d 109 (1968), I am at a loss to understand the statement in the majority opinion that this court is now reaffirming the position it took in the Wessling case. Casual reading of the two opinions to which we have just referred immediately illustrates that the Arnett case materially changed the impression given in the Wessling case.

In the Wessling case two residents of Kentucky made a trip across the bridge to New Albany, Indiana. The guest was injured. The driver host contended that the law of Indiana applied. Indiana had a guest-passenger statute the application of which, since it required careless conduct amounting to more than simple negligence, would have precluded recovery. The opinion pointed out that both the plaintiff and defendant were residents of and domiciled in Kentucky. It suggested that the Indiana policy of protecting drivers on that state's highways from claims by passengers demonstrated an interest in protecting Indiana residents or those who sue in Indiana courts. All significant contacts concerning the standard of care emanated from Kentucky.

In the Arnett case two residents of Ohio who were married to each other were involved in an automobile accident that occurred in Kentucky. In a multi-party action, a claim was asserted by the Ohio wife against her Ohio husband. Kentucky had abolished inter-spousal immunity; Ohio had not. Under Kentucky law, the husband was subject to liability to the wife for his negligence. Under Ohio law neither could recover from the other. This court applied Kentucky law. The Wessling [831] case was distinguished and was materially modified. In Arnett, this court appeared to commit itself to a rule that rejected both the law of the place of the tort principle and the weighing of significant contacts theory that had been espoused in the Wessling opinion but limited to "a very clear case." According to Arnett, the proper inquiry was whether Kentucky had enough contacts to warrant applying its law. If the accident occurred in Kentucky, the Arnett opinion reasoned, there was enough contact from that fact alone to justify applying Kentucky law. Arnett also declared that if both of the parties to the action are residents of Kentucky and the only relationship of the case to another state is that the accident happened there, Kentucky has enough contacts to justify the application of Kentucky law. The Arnett case could have been decided but would have achieved a different result by simply applying Restatement of Confl. of Laws 2d, 169(2), which states the proposition that so far as the issue of intra-family immunity is concerned, the applicable law will usually be the local law of the state of the parties' domicile. That result would have been, in my view, more realistic and just.

When Wessling and Arnett were written the Restatement of Conflict of Laws 2d was in tentative draft form. It has now been adopted in final form by the American Law Institute. Section 175, Restatement of Confl. of Laws 2d, states:

"In an action for wrongful death, 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 section 6 to the occurrence and the parties, in which event the local law of the other state will be applied."

Section 6 embodies the choice of law principles commonly referred to as the weighing-of-contacts approach.

It seems to be that the elements of simplicity and predictability have been pushed aside too far by the majority opinion in this case. The local law of the state where the injury occurred is the first choice and should control unless with respect to a particular issue some other state has a more significant relationship according to the principles of the Restatement. This approach requires surrender of the elements of simplicity and predictability only where a state other than that of the place of injury has a more significant relationship with respect to the particular issue.

In the case before us, the public policy of Ohio was to protect hosts from the claims of gratuitous guests except in instances of aggravated forms of negligence. The defendant was a resident of and domiciled in Ohio. The Ohio statute was meant to protect him. Surely it was meant to protect him while he drove on Ohio highways. Liability insurance afforded Ohio residents could well be negotiated and charged for on the basis of that state's law. The decision of the majority has extended a choice of law principle far beyond the general body of case law on which the Restatement principles are based and opens Kentucky as a forum which will instantly apply its own law upon any excuse whatever, regardless of policy considerations of sister states to the contrary. One would hope that the sister states do not afford residents and domiciliaries of Kentucky the same treatment in actions based upon conduct and injury in Kentucky. I, therefore, respectfully dissent and would affirm the judgment of the circuit court.

MILLIKEN, J., joins in this dissent.

Fisher, Omdahl & Tousignant (by Torger G. Omdahl) for the plaintiff.

Lori & Schwedler, P.C. (by David J. Lori), for the defendant.

RILEY, C.J.

This case arises out of an automobile accident occurring in Wisconsin. Plaintiff's decedents, Minnesota citizens, were struck and killed by defendant's decedent, a Michigan resident. The sole issue presented is whether the law of Wisconsin, the state in which the accident occurred, or the law of Michigan, the forum state and defendant's state of residence, is to be applied. The trial court held that under the doctrine of lex loci delicti Wisconsin law governs. The Court of Appeals reversed, holding that Michigan law applies. We affirm the decision of the Court of Appeals.

I. FACTS

Plaintiff is the administratrix of the estates of her parents, Harry Stier Iler and Mary Lou Iler. The Ilers resided in Afton, Minnesota, having lived there since 1963. Plaintiff is also a Minnesota resident.

On September 3, 1982, the Ilers set out on a camping trip, their ultimate destination being a campground near Manistique, Michigan. They had planned to spend a short time in Michigan and then return to Afton. Mrs. Iler's niece, Maureen Briggs, accompanied them. Miss Briggs resided in Beldenville, Wisconsin.

En route, while driving in Wisconsin, the Ilers and Miss Briggs were killed as a result of being struck head-on by an automobile owned and driven by Robin Brzoznowski, who was also killed [4] in the accident.^[1] Brzoznowski resided in Michigan, where he registered and insured his automobile.

Plaintiff initiated suit in a Minnesota probate court to have a nonfamily member appointed administrator of Robin Brzoznowski's estate. That action was dismissed for improper venue and lack of jurisdiction. Brzoznowski had no contacts in Minnesota other than the fact that his insurance carrier, United States Fidelity and Guaranty Company, did business there. Thus, under Rush v Savchuk, 444 US 320; 100 S Ct 571; 62 L Ed 2d 516 (1980), Minnesota was a constitutionally impermissible forum.

Following the dismissal in Minnesota, plaintiff brought this wrongful death action against defendant, a Michigan resident, administrator of Brzoznowski's estate.

Plaintiff moved for a declaratory judgment regarding which law would be applied to the substantive issues. The possibilities were Minnesota, where the Ilers resided; Wisconsin, where the accident occurred; or Michigan, the forum state and the state of Brzoznowski's residence. The state law to be applied is of great importance to the parties, because Wisconsin law, at the time this action was filed, limited damages for wrongful death to $25,000,^[2] but neither Michigan nor Minnesota limits recoverable damages, leaving the trier of fact to determine the damage amount.^[3]

[5] Plaintiff argued that under Sexton v Ryder Truck Rental, Inc, 413 Mich 406; 320 NW2d 843 (1982), Michigan, as the forum state, should apply its own law — lex fori. Defendant maintained that under the doctrine of lex loci delicti, the law of the state where the wrong occurred (Wisconsin) governs. Noting that the trend of the Michigan Supreme Court is toward applying the lex fori, the trial court, nonetheless, held for defendant, citing Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969). The trial court read Sexton to apply only in situations where all the parties are Michigan residents. Since the parties in this action are not all Michigan residents, the court held that Abendschein controlled.

The Court of Appeals granted an interlocutory appeal to consider the trial court's order. Noting that Sexton had no majority opinion, the Court of Appeals offered a lengthy quotation from Smith v Pierpont, 123 Mich App 33; 333 NW2d 165 (1983), in which the Pierpont Court adopted the position of Justice KAVANAGH in his concurrence in Sexton.

[I]n a tort action commenced in this state, the law of this state is to be applied unless the court determines that a superior foreign state interest exists which calls for the application of the foreign law in order to reach a just resolution of the controversy. We think the presumption of lex fori [6] is a logical and reasonable approach in that the fact that a Michigan court can obtain jurisdiction over the parties involved generally corresponds with a substantial level of state interest in the outcome of the litigation. However, the state which is the situs of the injury is entitled to a consideration of any disproportionate interest it may have in the controversy in order to avoid any injustice resulting from the application of lex fori. [Olmstead v Anderson, 145 Mich App 160, 165-166; 377 NW2d 853 (1985), quoting Pierpont, supra, 38.]

Since both parties to this action are not Michigan residents, the Court of Appeals weighed the interests of Michigan and Wisconsin to determine which law should be applied. Because defendant was a Michigan resident and had owned, registered, and insured his automobile under Michigan law, the Court of Appeals determined that no unfairness would result in applying Michigan law. Further, defendant's insurer, doing business in Michigan, had notice of potential for unlimited liability for negligence of defendant in the operation of his automobile. Finding no unfairness to the parties in applying Michigan law, the Court of Appeals could discern no interest of Wisconsin in applying its law. Thus the Court of Appeals turned to Michigan's interest stating:

Michigan has an avowed interest in favor or [sic] wrongful death actions resulting in full shifting of losses from those not at fault to those at fault. This is evident by the lack of a monetary limit on the recovery for the loss of society and companionship. Michigan's interest is particularly strong in regard to automobile accidents in light of Michigan's no-fault threshold scheme, MCL 500.3135; MSA 24.13135, in which only in a case of death or serious bodily injury or disfigurement does tort liability survive at all. [Olmstead, supra, 168.]

[7] Therefore, the Court reversed the decision of the trial court, and held that Michigan law applied. We granted defendant's application for leave to appeal on April 22, 1986. 425 Mich 851.

II

The Court in Sexton, supra, 419-425, provided an extensive exposition on the origins and pros and cons of lex loci delicti. Thus, a brief summary of the doctrine will suffice here. Prior to Sexton, the substantive rights of parties in an action brought in Michigan were governed by the law of the place of the wrong (the lex loci delicti). The use of the doctrine has been traced as far back as Wingert v Wayne Circuit Judge, 101 Mich 395; 59 NW 662 (1894).^[4] Some years later, in Kaiser v North, 292 Mich 49; 289 NW 325 (1939), two Michigan residents were involved in an accident in Ontario, Canada. Ontario had an automobile guest statute barring recovery by a guest passenger against a host driver. Michigan, however, permitted recovery under some circumstances. Kaiser, supra, 53. The Court squarely held that the law of the place of the accident governed and, thus, on the basis of Ontario law, denied the plaintiff recovery. This holding was consistent with the majority view at the time, as well as the original Restatement of Conflicts of Laws, § 378, which stated: "The law of the place of the wrong determines whether a person has sustained a legal injury."

The decline in popularity of the lex loci doctrine was initiated in the seminal case of Babcock v Jackson, 12 NY2d 473; 240 NYS2d 743; 191 NE2d 279 (1963). The court applied the law of New York, [8] as the state of the parties' residence, origin of the guest/host relationship, and beginning and anticipated end point of the trip, rather than the law of Ontario, where the accident occurred. After Babcock, a number of courts reexamined the advisability of adhering to the lex loci delicti doctrine.

In Michigan, the question of the continuing viability of lex loci delicti was presented in Abendschein, supra. That case also involved an accident which occurred in Ontario. The plaintiffs resided in New York and the defendants in Michigan. The trip began in New York and was to end in Michigan. The plaintiffs alleged that defendant Farrell caused the accident by his gross negligence. Under Ontario law, recovery was barred. The plaintiffs could recover under Michigan law if they could prove gross negligence or wilful and wanton misconduct on the part of the host driver.^[5] New York, on the other hand, had no guest statute. Thus, the plaintiffs could have recovered under the laws of New York or Michigan. Rather than adopting an alternative methodology as argued by the plaintiffs, the Abendschein Court reaffirmed its adherence to the lex loci delicti doctrine. In light of the perceived advantages of lex loci — certainty, predictability, ease of application, and discouragement of forum shopping — the unanimous Court was unpersuaded that lex loci should be abandoned, despite "occasionally unjust" results. Abendschein, supra, 516.

At the time of the Abendschein decision, and since, the doctrine of lex loci has been heavily criticized by legal scholars.^[6] The reputed advantages [9] of certainty and predictability of results may have been true in theory, but were often illusory in practice. As noted in Sexton, supra, 426-431, courts employed escape devices to avoid potentially harsh results. The two main manipulative techniques were "procedural characterization" and the "public policy" exception. Id., 426. Procedural characterization involves characterization of an issue as procedural rather than substantive, and then applying forum law to the procedural issues. Courts, thus, were able to evade applying the law of the state in which the wrong occurred.^[7]

[10] The public policy exception was invoked when the application of a foreign law would be violative of Michigan public policy. Early Michigan cases required a very substantial difference in policy before applying this exception, one court requiring that the foreign law be "against good morals or natural justice." Sexton, supra, 428, quoting Eskovitz v Berger, 276 Mich 536, 541; 268 NW 883 (1936). This limited exception was later expanded in Lieberthal v Glens Falls Indemnity Co, 316 Mich 37; 24 NW2d 547 (1946), in a plurality opinion. Three of the justices were of the opinion that a constitutionally enacted statute conclusively indicates the state's public policy and, therefore, is sufficient reason to apply forum law. Sexton, supra, 431.

In Sweeney v Sweeney, 402 Mich 234; 262 NW2d 625 (1978), the Court used the public policy exception in order to apply Michigan law regarding the issue of intrafamily immunity.^[8] Both parties were Michigan residents, the defendant being the plaintiff's father. They were involved in an automobile accident in Ohio, whose law would have barred the suit on the basis of intrafamily immunity. Michigan, [11] on the other hand, had abolished intrafamily immunity in Plumley v Klein, 388 Mich 1; 199 NW2d 169 (1972). Recognizing that the case presented an "opportunity to reappraise our entire conflict of laws policy," Sweeney, supra, 239, the Court declined to do so, fearing the potential "unfortunate outcome in the next case that comes along." Id., quoting Juenger, Torts choice of law in Michigan, 52 MSB J 730 (1973). Instead, the Court elected a more conservative solution, holding that application of Ohio law would frustrate Michigan public policy. The Court, therefore, applied the public policy exception to the lex loci doctrine, rather than making sweeping changes with potential unforeseen consequences. In so doing, the Court evidenced a willingness to reexamine the lex loci doctrine, but in a cautious manner, case by case. That reexamination took place four years later in Sexton.

III

The consolidated appeals in Sexton, supra, presented an excellent opportunity to abrogate the lex loci doctrine. Both cases involved only Michigan citizens and accidents which occurred in another state.

In Sexton, the plaintiff and a coemployee were operating a truck in Virginia during the course of their employment. The trip began and was to terminate in Michigan. The truck overturned in Virginia, seriously injuring the plaintiff. The defendant, a Florida corporation authorized to do business in Michigan, was the lessor of the truck which was registered and titled in its name. The defendant had leased the truck to the plaintiff's employer at its Grand Rapids, Michigan, office where the truck had been garaged and insured. [12] Sexton, 414. The plaintiff brought an action under the Michigan motor vehicle owners' liability statute, MCL 257.401; MSA 9.2101, which subjected the owner of a motor vehicle to liability for any injury arising out of the negligent operation of that vehicle. Virginia law provided for no such owner liability.

On the basis of Abendschein, supra, the trial judge granted summary judgment for the defendant. Since the accident occurred in Virginia, which did not provide for owner liability, and finding no applicable exception to the lex loci doctrine, the judge felt constrained to hold that Virginia law governed and that the plaintiff had no cause of action. The judge, however, expressed his opinion that the result was unfair and extreme and arrived at only because of the constraints of stare decisis. Sexton, supra, 415-416.

The Court of Appeals reluctantly affirmed, addressing a plea to the Michigan Supreme Court to abandon the lex loci doctrine.

The companion case to Sexton in the Supreme Court was Storie v Southfield Leasing, Inc, supra (appealing 90 Mich App 612; 282 NW2d 417 [1979]), which presented similar facts. The plaintiff's decedent, a Michigan citizen, was a passenger in an airplane owned and registered by defendant Southfield Leasing, Inc. The aircraft was piloted by the president of Lebow Associates, Inc, a Michigan corporation. The decedent was a Lebow employee. Southfield Leasing, also a Michigan corporation with its principal place of business in Southfield, Michigan, had leased the aircraft to Lebow.

The decedent and the pilot were on a business trip, which originated in Michigan and was to end in Ohio, when the aircraft crashed near Akron, Ohio. Both occupants were killed.

The plaintiff brought a wrongful death action [13] against Southfield Leasing. In turn, Southfield Leasing filed a third-party complaint against Lebow for indemnity. Eventually, the plaintiff stipulated that the only claim against Southfield Leasing was under the Michigan aircraft owners' liability statute, MCL 259.180a; MSA 10.280(1), which provides that the owner of an aircraft is liable for any injuries occurring because of the negligent operation of the aircraft. Ohio law contained no aircraft owner liability provisions.

As in Sexton, the trial court granted summary judgment for the defendant, holding that Ohio law applied. The Court of Appeals reversed, finding that Ohio law contravened Michigan public policy expressed in the owners' liability statute. The Court made use of the public policy exception to the lex loci doctrine, holding that the Michigan aircraft owners' liability statute applied.

Analysis of the Sexton decision is made somewhat difficult by the fact that none of the opinions garnered a majority. We reversed the decision of the Court of Appeals in Sexton, but affirmed in Storie. The end result was that Michigan law was applied in both cases.

In the lead opinion, Justice WILLIAMS, joined by two other justices, discussed the pros and cons of lex loci delicti.

The traditional advantages advanced on behalf of the lex loci rule have included discouraging forum shopping and furthering the goals of certainty and predictability through its ease of application, thus simplifying the task of both lawyers and the courts. [Sexton, supra, 421.]

However, upon closer examination, it became clear that in practice the reputed advantages of lex loci delicti did not exist. The doctrine was [14] neither generally followed nor consistently applied.

"[A]s jurisdiction after jurisdiction has departed from the law of the place of the wrong as the controlling law in tort cases, regardless of the issue involved, that law no longer affords even a semblance of the general application that was once thought to be its great virtue." [Id., 424, quoting Reich v Purcell, 67 Cal 2d 551, 555; 63 Cal Rptr 31; 432 P2d 727 (1967).]

In addition, the use of escape devices to avoid applying the law of the place of the wrong chipped away at the veneer of predictability and certainty of results. These being the primary advantages advanced in favor of lex loci delicti, Justice WILLIAMS concluded that "in the real world the argument of certainty, the chief argument in favor of lex loci delicti, no longer is tenable." Id., 432.

Lex loci delicti was also reputed to advance the prevention of forum shopping. However, this advantage was not present in cases such as Sexton and Storie, in which the parties were citizens of the forum.

The other argument in favor of lex loci delicti, avoidance of forum shopping, is not a strong argument as against citizens of the forum state who presumably have every reason of convenience and economy to be entitled to service in their own state. To this, of course, can be added the fact that the forum state generally has an interest in seeing that its injured citizens are well-served and that its citizen defendants are afforded every protection that such citizens would have in their own state. Additionally, where both the plaintiff and the defendant are citizens of the forum state, the state where the wrong took place will normally have no interest in the litigation. [Sexton, supra, 432-433.]

[15] Therefore, as a result of examining the underlying rationales for lex loci delicti, and finding that in practice those rationales are not advanced, Justice WILLIAMS determined that there was no reason to preserve the lex loci delicti rule. Furthermore, "reason" and "practical" pressures militate for the application of forum law. Sexton, supra, 433.

Thus, Justice WILLIAMS concluded:

As a consequence of these premises, in the normal common-law tradition, we hold that where Michigan residents or corporations doing business in Michigan are involved in accidents in another state and appear as plaintiffs and defendants in Michigan courts, the courts will apply the lex fori, not the lex loci delicti, and we do so without reference to any particular state policy. We reach this conclusion on the facts and reasoning herein developed. We do not here adopt the law of dominant contacts or any other particular methodology, although any such reasoning may, of course, be argued where persuasive and appropriate. [Id., 433.]

In his concurrence, Justice KAVANAGH, joined by two other justices, agreed with the result reached by Justice WILLIAMS. Finding the fact that the accidents did not occur in Michigan to be of no great significance, Justice KAVANAGH saw no reason to apply the law of a foreign jurisdiction.

The power of a state to effect legal consequences is not limited to occurrences within the state if it has control over the status which gives rise to those consequences....

The status of ownership giving rise to the legal consequence of liability has been regulated in Michigan by [the owners' liability statutes] and so the occurrence of the accident beyond Michigan's [16] boundaries is not controlling under these Michigan laws. [Id., 440-441.]

Justice LEVIN, concurring in both Justice WILLIAMS' and Justice KAVANAGH'S opinions, offered a separate explanation.

Justice WILLIAMS' opinion would hold that, in an action commenced in Michigan growing out of an accident in another state, Michigan common and statutory law shall be applied whenever the plaintiff and defendant are both either residents of or corporations doing business in Michigan. Justice KAVANAGH'S opinion would hold that in a tort action commenced in Michigan, the domestic law of this state shall govern absent a reason for applying the law of another state and that the place of the wrong is not a reason for not applying Michigan domestic law. [Id., 441.]

Agreeing with Justice WILLIAMS that there was no reason not to apply Michigan law in the two cases, Justice LEVIN expressed a preference for the approach of Justice KAVANAGH, stating:

[W]e should go the distance and declare that Michigan law will apply in all personal injury and property damage actions without regard to whether the plaintiffs and defendants are all Michigan persons unless there is compelling reason for applying the law of some other jurisdiction, and that merely because the injury arose out of an occurrence in another state is not such a reason. [Id., 442.]

Justice LEVIN also expressed a reticence toward having the Sexton opinion expanded into other fields of law, such as contract or property law.

Two justices were not persuaded that a retreat from lex loci delicti was necessary, and thus dissented.

[17] IV

The plurality opinion in Sexton has proven to be somewhat difficult for the courts to apply. Some courts have looked to the parties' residences and the claims asserted to determine whether Sexton controls the resolution of the choice-of-law issue. In Severine v Ford Aerospace, 118 Mich App 769; 325 NW2d 572 (1982), the plaintiff, a Pennsylvania resident, who allegedly was the victim of employment discrimination, brought an action claiming a violation of the Michigan civil rights statute. The Court interpreted Sexton to hold:

[I]n tort actions arising from out-of-state aircraft or motor vehicle accidents, Michigan courts will apply lex fori so long as the parties are Michigan residents or corporations doing business in Michigan. Three of the justices would apply forum law without regard to whether all of the parties were Michigan residents absent a compelling reason to apply the law of another jurisdiction. Id., (KAVANAGH, J., concurring; LEVIN, J., concurring). The Court declined to adopt any alternative choice-of-law methodology. However, the holding of the case was specifically limited to personal injury and property damage actions. Judge [sic] LEVIN, in his concurring opinion, emphasized that choice of law in other fields was to continue to be governed by prior precedents. Id.... Therefore, since we do not perceive plaintiff's employment discrimination claim as one for personal injury or property damage, we continue to apply the lex loci delicti in this instance. [Id., 776.]

Since the effect of any discriminatory employment decision was felt by the plaintiff in Pennsylvania, the Court held that Michigan choice-of-law principles directed that Pennsylvania law be applied. The plaintiff had pled only a violation of Michigan law; hence, the Court of Appeals upheld [18] the trial court's grant of summary judgment in favor of the defendant.

Similarly, in Hamann v American Motors Corp, 131 Mich App 605; 345 NW2d 699 (1983), the Court indicated that forum law is applicable only where a plaintiff and a defendant are Michigan residents. Since the plaintiff was a resident of Tennessee, and the injury occurred there, the Court affirmed the trial court's determination that, under the rule of lex loci delicti, Tennessee law would apply.

A federal court interpreted Sexton as abandoning lex loci delicti only in "certain personal injury and property damage cases." Carver v Sheller-Globe Corp, 636 F Supp 368 (WD Mich, 1986). The court distinguished Carver from Sexton:

Sexton dealt with torts arising from accidents involving aircraft or motor vehicles. This case deals with an employment relationship. Further, Sexton cannot be applied to this case as neither plaintiff nor defendant are Michigan residents. At most, defendant does business in Michigan as a plant is located within the state. The requirements set out in Sexton are not met in this case. [Id., 370.]

The court did not directly apply lex loci delicti as in Severine and Hamann, supra, but instead weighed the interests of the competing states, Michigan and Illinois. The court concluded that Michigan had no interest in the action since neither party was a resident of Michigan and all the events culminating in the action took place in Illinois. Therefore, Illinois had the greater interest and its law applied.

The Carver court is not alone in weighing the interests of the involved states to determine which state has the greater interest in having its law [19] applied.^[9] This weighing of interests generally has come into play in those cases in which both parties are not Michigan residents. The federal courts, applying Michigan law first used this weighing procedure. In Bennett v Enstrom Helicopter Corp (On Rehearing), 686 F2d 406 (CA 6, 1982), the plaintiff was a New Zealand resident suing for the wrongful death of her husband who also had been a New Zealand resident. The fatal accident occurred in New Zealand on a flight which began and was to end there. New Zealand law would have barred the action, but Michigan law would not. Thus, on the basis of Sexton, the plaintiff requested that Michigan law be applied. The court surveyed the Sexton opinions, holding that under either the approaches advocated by Justice WILLIAMS or Justice KAVANAGH, New Zealand law would apply. Justice WILLIAMS' approach would not prescribe Michigan law because the plaintiff was not a resident of Michigan. In addition, since most of the contacts involved New Zealand, the court determined that Michigan had little interest in applying its own law. Therefore, the court determined that New Zealand law controlled.

The case of General Motors Corp v Nat'l Auto Radiator Mfg Co, Ltd, 694 F2d 1050 (CA 6, 1982), is similar. Noting that not all the parties were Michigan residents, the court distinguished Sexton and held that Ontario law, the lex loci delicti, applied. The court determined that the primary issue in the case centered on an employer-employee relationship in Ontario. As a result, Ontario's [20] interest in the employment relationships within its borders outweighed any interest Michigan may have had in applying its law. Furthermore, Ontario law did not violate Michigan public policy.

The first Michigan case in which the interests of the involved states were evaluated was Pierpont, supra, upon which the Court of Appeals in this case relied heavily. The Court adopted Justice KAVANAGH'S position that the law of the forum should control absent a "superior foreign state interest." Id., 38. Forum law would be displaced in order to "reach a just resolution of the controversy." Id. The Court stated that "the presumption of lex fori is a logical and reasonable approach in that the fact that a Michigan court can obtain jurisdiction over the parties involved generally corresponds with a substantial level of state interest in the outcome of the litigation." Id.

In Pierpont, the parties were both Michigan residents. The plaintiffs sued the defendant for medical malpractice, which occurred at one of the defendant's Wisconsin offices. The Court concluded that Michigan had a strong interest in applying its law to cases involving Michigan citizens. Wisconsin, on the other hand, did not have a superior interest, since no Wisconsin resident or property was involved. As a result, the Court held that Michigan law governed.

While the Pierpont Court reached the correct result, its reasoning, and adoption of Justice KAVANAGH'S approach may only be considered dicta. The facts presented were the same as those in Sexton — two Michigan residents involved in a lawsuit in which the alleged wrong took place in a foreign jurisdiction. Consequently, Pierpont was controlled by Sexton and could have been decided without determining the interests of Michigan or [21] Wisconsin. As a result, Pierpont cannot be read to stand for the proposition for which it is generally cited — that in cases in which the parties are not both residents, the law of the forum applies unless a superior foreign interest is shown. See Smith v Teledyne Industries, Inc, 578 F Supp 353 (ED Mich, 1984) (erroneously reading Pierpont as involving an out-of-state defendant).

Another Michigan case which surveyed the post-Sexton conflicts landscape, succinctly came to the same conclusion as the Pierpont Court:

[W]here all parties were Michigan residents, the Court has applied Michigan Law. Smith v Pierpont. In such a case, the WILLIAMS and KAVANAGH views coalesce: Michigan has a very strong interest in applying its law to a case concerning only its residents. Where either plaintiff, Bennett v Enstrom, supra, or defendant, General Motors v National Auto, supra, is not a Michigan resident nor doing business in Michigan, courts have compared the interests of each jurisdiction in having its law govern the case. [Vogh v American International Rent-A-Car, Inc, 134 Mich App 362, 368; 350 NW2d 882 (1984).]

The trial court had granted summary judgment for the defendant, premised upon the inapplicability of Michigan law. The Court analyzed the views of Justice WILLIAMS and Justice KAVANAGH and determined that, under either view, the plaintiff may have been able to assert Michigan law and thus recover. Therefore, the Court of Appeals reversed and remanded the case for further factual determinations in order to ascertain whether Michigan law would apply.

The most recent Michigan case involving a choice-of-law issue is Hampshire v Ford Motor Co, 155 Mich App 143; 399 NW2d 36 (1986), in which [22] an application for leave to appeal to this Court was denied post, 852. A California resident, while driving in California, was struck by an automobile manufactured by the defendant. At the time of the accident, the automobile was stolen.^[10] The plaintiff brought an action in Michigan, alleging that the defendant had negligently designed the ignition-locking system in such a manner as to make the defendant's automobiles easier to steal than other cars.^[11] The only Michigan connections were that the defendant had its headquarters in Michigan and that Michigan was the forum state. After weighing the interests of California and Michigan, the Court determined that California had a substantial interest in having its law applied, while Michigan had none. The Court took into account the plaintiff's residence, the place where the automobiles were located and registered, the place of the accident, and the fact that the Michigan connections were minimal at best.

In sum, Michigan courts have not been entirely consistent in interpreting Sexton. Some have read Sexton as being applicable only in cases where the parties are all Michigan residents bringing an action for personal injury. Other courts have read Sexton to automatically require a balancing of interests in the event that the case before them is not on all fours with Sexton. The latter view appears to be the position in the majority of cases, as well as the trend. The Michigan cases which narrowly interpret Sexton were released relatively soon after the decision was issued. See Severine and Hamann, supra. The interest-weighing cases [23] are greater in number, as well as being more recent. See Vogh, Olmstead, and Hampshire, supra.

The cases in which the plaintiff was not a resident, but brought suit in Michigan (presumably asserting jurisdiction over the defendant on the basis of the defendant's contacts with Michigan) have generally applied lex loci delicti, either through a strict reading of Sexton or by weighing the interests of the states involved. However, none of these cases presented a circumstance, such as in this case, in which the place of injury may only be described as fortuitous. In all of those cases, the injury occurred in states in which the plaintiff had substantial contacts or actually resided in fact at the time of the injury. The plaintiffs' contacts with the forum states, whose laws were ultimately applied, could be described as neither fleeting nor fortuitous. That is not the case here. Plaintiff did not reside in or have substantial contacts with the State of Wisconsin. The accident — a completely unplanned event — was the only contact with Wisconsin. Therefore, this case is distinguishable from those cases brought by out-of-state plaintiffs in which lex loci delicti was applied.

V

Despite the fact that Sexton did not produce a majority opinion, some generalizations may be formulated. Clearly, a majority of the Court abandoned lex loci delicti as an absolute rule. The reputed benefits of lex loci delicti were no longer tenable, and the precedents for applying the doctrine were either overruled or substantially weakened. As a result, there was no reason to apply lex loci delicti and strong justification for applying Michigan law. None of the opinions adopted a [24] particular choice-of-law methodology, but Justice WILLIAMS suggested that "such reasoning may, of course, be argued where persuasive and appropriate." Sexton, supra, 433. Since no specific methodology was adopted, each case must be evaluated on the circumstances presented. Justice WILLIAMS acknowledged this by stating that the holding was reached in the "normal common-law tradition." Under Justice KAVANAGH'S approach, a case would be examined to determine whether the foreign elements are so substantial as to override a presumption that forum law applies. Thus, even under the more narrow position of Justice WILLIAMS, Sexton is applicable to cases not exactly on point factually.

As presented in Sexton, only Michigan residents were involved in the lawsuit. In that situation, there was no rational reason to apply lex loci delicti. To do so would not have promoted certainty, predictability of results, ease of application, or prevention of forum shopping. Furthermore, since the parties were citizens of Michigan and not residents of the state of the injury, the state of the injury did not have an interest in having its law applied. Hence, there was no rational justification for displacing the law of the forum. That same reasoning may be applied to tort cases presenting somewhat different factual scenarios. The question to be resolved is whether this case presents a situation in which reason requires that foreign law supersede the law of this state. It is important to note that none of the opinions considered the fact that the accident took place outside Michigan to be of great or particular significance, with Justice KAVANAGH specifically so stating. Sexton, supra, 440. Justice WILLIAMS considered the justifications for lex loci delicti and, finding them no longer tenable in practice, determined that there was no [25] reason to supplant the law of the forum. It is with these principles in mind that we analyze this case.

Here, both parties to the action were citizens of a state which allows recovery of unlimited damages in wrongful death actions. Their automobiles were registered, licensed, and insured in those states. Their insurers were on notice regarding potential unlimited liability and wrote insurance policies with that potentiality factored into the premium. Unquestionably, no unfairness would result, therefore, in applying Michigan law. Both parties, as well as their insurers, were on notice regarding the possibility of unlimited liability and presumably had insured against that eventuality.

However, our analysis does not end there. The next step is to determine whether this case is sufficiently different from Sexton to justify departing from its rationale. In Sexton, the fact that the accidents took place in two states other than Michigan was not adequate to displace Michigan law when all the parties were Michigan residents. To do so would not advance the interests of certainty, predictability of results, or prevention of forum shopping. Furthermore, "where both the plaintiff and the defendant are citizens of the forum state, the state where the wrong took place will normally have no interest in the litigation." Sexton, supra, 433 (WILLIAMS, J.).

In this case, plaintiff is not a Michigan resident. However, that fact does not affect the conclusion reached in Sexton that the chief conceptual underpinnings of lex loci delicti — certainty and predictability — are no longer viable. The Court arrived at that conclusion without reference to the parties' citizenship. Therefore, to apply lex loci delicti in this case would advance those rationales no more than it would have in Sexton.

Additionally, the prevention of forum shopping [26] was not furthered in Sexton as "citizens of the forum state ... presumably have every reason of convenience and economy to be entitled to service in their own state." Sexton, supra, 433 (WILLIAMS, J.). This rationale deserves some discussion because plaintiff is not a Michigan citizen, and, thus, defendant argues that plaintiff has engaged in forum shopping — particularly because plaintiff initially brought suit in Minnesota.

The concern surrounding forum shopping stems from the fear that a plaintiff will be able to determine the outcome of a case simply by choosing the forum in which to bring the suit. Presumably, plaintiffs will bring suit in the forum whose law is the most advantageous. In so doing, the plaintiff may be attempting to obtain a favorable result simply by choosing the right forum, raising the fear that

applying the law sought by a forum-shopping plaintiff will defeat the expectations of the defendant or will upset the policies of the state in which the defendant acted (or from which the defendant hails). As Justice Stevens pointed out in [Allstate v Hague, 449 US 302; 101 S Ct 633; 66 L Ed 2d 521 (1981)], the latter concern stems from our desire for interstate harmony and national unity. [Morrison, Death of conflicts, 29 Vill L R 313, 362 (1983-84).]

There is no forum-shopping concern when the forum is also the plaintiff's state of citizenship. However,

[w]hen the plaintiff forgoes the economies afforded by bringing suit at home ... we may begin to be suspicious about whether the plaintiff has sued elsewhere primarily in order to obtain the application of a particular law and thus whether the plaintiff has attempted to "buy" a particular result. [27] Yet, there are other more "legitimate" reasons for plaintiffs to sue elsewhere than at home, most notably to obtain jurisdiction over the defendant. This jurisdiction in turn usually should keep courts from wondering too deeply about whether the plaintiff is a forum shopper because the jurisdictional prerequisites will mitigate the dangers we usually fear will result from forum shopping.

The court will have to have either general or specific jurisdiction over the defendant. The assertion of general jurisdiction will be permissible only if the defendant is a resident of the forum or has major continuous connections with the forum. Such a defendant's expectations theoretically will have been framed with a view towards the possible application of forum law to his activities; hence, the defeating-the-defendant's-expectations reason for objecting to a possible forum-shopping plaintiff does not exist. Further, interstate harmony is not disrupted by a forum's applying it's [sic] own law to a forum defendant. [Id., 362-363.]

Here, plaintiff initiated suit in Minnesota which, being plaintiff's home state, raises no forum-shopping concern. However, suit could not be maintained there because of lack of jurisdiction over defendant. Thereafter, plaintiff initiated this action in defendant's home state, where there is no question that jurisdiction is proper. Since defendant is a citizen of Michigan, there can be no serious argument that applying Michigan law will defeat his expectations. Thus, in this case, applying lex loci delicti does not promote the prevention of forum shopping. Plaintiff's choice of Michigan, being the state of defendant's citizenship and thus subjecting defendant to general jurisdiction, is perfectly legitimate. Furthermore, as pointed out in Sexton by both Justices WILLIAMS and LEVIN, in a case where there is serious concern that the plaintiff engaged in forum shopping, the defendant [28] may request dismissal under the doctrine of forum non conveniens. See Anderson v Great Lakes Dredge & Dock Co, 411 Mich 619; 309 NW2d 539 (1981); Cray v General Motors Corp, 389 Mich 382; 207 NW2d 393 (1973). Therefore, just as in Sexton, the argument that lex loci delicti prevents forum shopping does not support application of the doctrine in this case.

In Sexton, the state where the wrong occurred had no interest in the litigation because no citizen of that state was a party to the action. This rationale holds true whether the parties are from the same state, as in Sexton, or, as here, from different states. The operative fact is that neither party is a citizen of the state in which the wrong occurred. Since neither party in this case is a citizen of Wisconsin, that state has no interest in seeing its limitation of damage provision applied. That is not to say that the state in which the injury takes place will never have an interest in litigation arising out of the injury if none of its citizens are involved. The injury state always has an interest in conduct within its borders, whether or not its citizens are involved. However, the issue in this case does not involve conduct, but, instead, damages or limitation thereof.

Limitations of damages for wrongful death ... have little or nothing to do with conduct. They are concerned not with how people should behave but with how survivors should be compensated. The state of the place of the wrong has little or no interest in such compensation when none of the parties reside there. [Reich v Purcell, supra, 556.]

Damage-limitation provisions are designed to protect defendants from exorbitant damage awards. However, as noted in Reich:

[29] That concern is ... primarily local and we fail to perceive any substantial interest Missouri [the state where the injury occurred] might have in extending the benefits of its limitation of damages to travelers from states having no similar limitation. Defendant's liability should not be limited when no party to the action is from a state limiting liability and when defendant, therefore, would have secured insurance, if any, without any such limit in mind. A defendant cannot reasonably complain when compensatory damages are assessed in accordance with the law of his domicile and plaintiffs receive no more than they would had they been injured at home. [Id.]

See also Bryant v Silverman, 146 Ariz 41; 703 P2d 1190 (1985) (state of injury has no strong interest in compensation where plaintiff is nonresident); Murphy v Colorado Aviation, Inc, 41 Colo App 237; 588 P2d 877 (1978) (applying forum law in action brought by nonresident plaintiff against resident defendant); Proprietors Ins Co v Valsecchi, 435 So 2d 290 (Fla App, 1983) (place of injury mere happenstance and thus not interested in having its law applied) (see also cases cited in Valsecchi).^[12]

Finding as we do that applying lex loci delicti will not promote the reputed advantages of the doctrine and that Wisconsin has no interest in seeing its law applied, we see no rational reason to [30] displace Michigan law in this case.^[13] Since there is no reason to apply Wisconsin law, it is, therefore, unnecessary to undertake an analysis of the interests of Michigan.^[14] Thus, we reach no opinion on the analysis of the Court of Appeals regarding Michigan's interest in shifting losses in wrongful death actions from those not at fault to those at fault. Such an analysis is unnecessary in this case. However, in another case in which the state of injury does have an interest in having its law applied, such an analysis might be necessary and proper.

VI. CONCLUSION

In sum, this case involves a suit brought by a party not a citizen of Michigan, against a Michigan resident, arising out of an accident occurring in a state in which neither party resided. The states in which both plaintiff and defendant were citizens allow for unlimited recovery in wrongful death actions, but the state of the accident does not. Applying lex loci delicti will not advance the conceptual rationales underlying the doctrine. Furthermore, no unfairness would result to the parties [31] in applying Michigan law. Finally, since no citizen of Wisconsin is involved in the action, it has no interest in seeing its law applied. In light of the above, there is no rational reason to displace Michigan law. The decision of the Court of Appeals is affirmed.

LEVIN, BRICKLEY, CAVANAGH, BOYLE, and ARCHER, JJ., concurred with RILEY, C.J.

GRIFFIN, J., took no part in the decision of this case.

[1] On May 18, 1984, Miss Briggs' claim, and that of her parents, against defendant was settled in full. Miss Briggs is not a party and is in no way connected to this lawsuit. Thus, the only connection Wisconsin has with this lawsuit is the fact that the accident took place within its borders.

[2] Wisconsin has amended its wrongful death damage provision to allow the spouse, children, or parents of the deceased to recover up to $50,000 for loss of society and companionship. See Wis Stat 895.04. However, the amendment became effective after the filing of this action and does not affect the outcome here.

[3] The issue before this Court centers on the question which state's damage provision will govern the case. It should be noted that some courts have decided different issues in the same case by applying the law of different states. This practice is called depecage. However, neither party has requested that we employ this approach, and, thus we express no opinion on the propriety of so doing. See, e.g., Ewing v St Louis-Clayton Orthopedic Group, Inc, 790 F2d 682 (CA 8, 1986); In re Air Crash Disaster Near Chicago, 644 F2d 594 (CA 7, 1981), cert den 454 US 878 (1981); Bryant v Silverman, 146 Ariz 41; 703 P2d 1190 (1985). See also Leflar, American Conflicts Law (3d ed), § 109, pp 221-222; Hill, The judicial function in choice of law, 85 Colum LR 1585 (1985); Reese, Depecage: A common phenomenon in choice of law, 73 Colum LR 58, 59-60 (1973); Wilde, Depecage in the choice of tort law, 41 S Cal L R 329 (1968).

[4] For an interesting discussion on the paucity of historical justification for lex loci delicti, see Abendschein v Farrell, 11 Mich App 662, 668-674; 162 NW2d 165 (1968).

[5] The statute involved, MCL 257.401; MSA 9.2101, once a fertile source of conflict of laws controversies, was found to be unconstitutional in Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975).

[6] See the discussion in Sexton, supra, 420-425. No area of law seems to provide scholars as fecund a milieu for commentary as does conflicts of laws. For recent discussions on the subject see Corr, Modern choice of law and public policy: The emperor has the same old clothes, 39 U Miami L R 647 (1985); Corr, Criminal procedure and the conflict of laws, 73 Geo L J 1217 (1985); Miller & Crump, Jurisdiction and choice of law in multistate class actions after Phillips Petroleum Co v Shutts, 96 Yale L J 1, 57-66 (1986); Hill, The judicial function in choice of law, 85 Colum L R 1585 (1985); Juenger, Conflict of laws: A critique of interest analysis, 32 Am J Comp L 1 (1984); Korn, The choice-of-law revolution: A critique, 83 Colum L R 772 (1983); Kozyris, Corporate wars and choice of law, 1985 Duke L J 1; Morrison, Death of conflicts, 29 Vill L R 313 (1983-84); Morse, Choice of law in tort: A comparative survey, 32 Am J Comp L 51 (1984); Pielemeier, Constitutional limitations on choice of law: The special case of multistate defamation, 133 U Pa L R 381 (1985); Reese, The law governing airplane accidents, 39 Wash & Lee L R 1303 (1982); Richman, Diagramming conflicts: A graphic understanding of interest analysis, 43 Ohio St L J 317 (1982); Sedler, Choice of law in Michigan: Judicial method and the policy centered conflict of laws, 29 Wayne L R 1194 (1983); Smith, Resolution of true conflicts without value judgments: A modified comparative-impairment approach, 61 U D J Urban L 433 (1984); Symposium on interest analysis in conflict of laws: An inquiry into fundamentals with a side glance at products liability, 46 Ohio St LJ 457 (1985); Symposium: Conflict of laws (Part I), 34 Mercer L R 1 (1982); Symposium: Conflict of laws (Part II), 35 Mercer L R 417 (1984); Carteau, Comments: Conflicts of law and successions: Comprehensive interest analysis as a viable alternative to the traditional approach, 59 Tul L R 389 (1984); Cray, Comment: Choice of law in right of publicity, 31 UCLA L R 640 (1984).

[7] An example of procedural characterization and the confusion which can result in using this escape device is provided by two New York cases. In Kilberg v Northeast Airlines, Inc, 9 NY2d 34; 211 NYS2d 133; 172 NE2d 526 (1961), the court declared that damages in wrongful death actions relate to the "remedy" and thus were procedural. Therefore, the New York court applied New York's unlimited damage provision in a case where the victim died in an airplane crash in Massachusetts, a state which limited damages to $15,000. However, this rationale was later disaffirmed in Davenport v Webb,11 NY2d 392; 230 NYS2d 17; 183 NE2d 902 (1962).

Despite Davenport, a federal court cited Kilberg for support in concluding that damages were a procedural matter and applied Michigan law to that element. Papizzo v O Robertson Transport, Ltd, 401 F Supp 540 (ED Mich, 1975). See the discussion in Sedler, Choice of law in Michigan: A time to go modern, 24 Wayne L R 829, 840-842 (1978).

[8] Other cases making use of the public policy exception include: Tucker v Norfolk & WR Co, 403 F Supp 1372 (ED Mich, 1975) (public policy exception regarding intrafamily immunity); Shaheen v Schoenberger, 92 Mich App 491; 285 NW2d 343 (1979) (Florida wrongful death damage limitation contrary to Michigan public policy where all parties are Michigan residents); Branyan v Alpena Flying Service, Inc, 65 Mich App 1; 236 NW2d 739 (1975) (Michigan public policy offended by wrongful death damage limitation).

[9] For other federal court applications of Sexton see Boyd v Keystone Lab, 774 F2d 1161 (CA 6, 1985) (affirming application of Michigan law); Mair v McCormick Place, unpublished memorandum opinion of US Dist Ct, ND Ill, decided October 24, 1985 (Docket No 85 C 1220) (interests of Illinois and Michigan weighed, with Illinois' interest being found greater); Comshare, Inc v Execucom Systems Corp, 593 F Supp 981 (ED Mich, 1984) (Sexton found not applicable in employment-contract case).

[10] The driver of the stolen automobile, also a California resident, was not the thief, but had been lent the car by the thief.

[11] Plaintiff's position was that stolen automobiles are more likely to be involved in injury-causing accidents than are other cars, thus giving rise to a duty to the plaintiff by the defendant to make its automobiles more difficult to steal.

[12] In this case, the parties argued for the application of either Wisconsin or Michigan law. Neither party advanced the position that Minnesota law should be applied. Furthermore, Minnesota law regarding wrongful death damages does not seriously conflict with Michigan law, as neither state puts a cap on recovery. Thus we did not consider the application of Minnesota law in this case. However, a case may arise, similar to the present one, in which the law of the plaintiff's home state does conflict with Michigan law. In that situation, the option of displacing Michigan law for the law of the plaintiff's citizenship will be presented. Nevertheless, the analysis will be the same as here.

[13] The constitutional limitations on choice of law are rather meager and clearly not implicated in this case. The Due Process Clause of the Fourteenth Amendment and the Full Faith and Credit Clause of art IV, § 1, require that for a state to apply its own law it "must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." Allstate v Hague, supra, 313. See also Phillips Petroleum Co v Shutts,472 US 797; 105 S Ct 2965; 86 L Ed 2d 628 (1985) (holding as unconstitutional the application of Kansas law in a class action where over ninety-nine percent of the oil leases involved, and ninety-seven percent of the plaintiffs, had no connection with Kansas).

Here, since defendant is a citizen, there is no question of the constitutionality of applying forum law.

[14] This is consistent with Sexton, supra, as no opinion in that case discussed the purpose of the owners' liability statutes relative to resolving the choice-of-law issue. Only when Justice WILLIAMS considered the extraterritorial application of the statutes did he enunciate the purpose of those statutes. See Sexton, supra, 437-438.

Frank G. Godson for Irene Kuehner, appellant.

Courtland R. LaVallee for Canadian National Railway, appellant.

James S. McAskill and James N. Schmit for respondent.

Judges BURKE, SCILEPPI and GIBSON concur with Chief Judge FULD; Judge BREITEL concurs in a separate opinion in which Judge JASEN concurs; Judge BERGAN dissents and votes to affirm in an opinion.

[123] Chief Judge FULD.

A domiciliary of Ontario, Canada, was killed when the automobile in which he was riding, owned and [124] driven by a New York resident, collided with a train in Ontario. That jurisdiction has a guest statute, and the primary question posed by this appeal is whether in this action brought by the Ontario passenger's estate, Ontario law should be applied and the New York defendant permitted to rely on its guest statute as a defense.

The facts are quickly told. On May 7, 1969, Arthur Kuehner, the defendant's intestate, a resident of Buffalo, drove his automobile from that city to Fort Erie in the Province of Ontario, Canada, where he picked up Amie Neumeier, who lived in that town with his wife and their children. Their trip was to take them to Long Beach, also in Ontario, and back again to Neumeier's home in Fort Erie. However, at a railroad crossing in the Town of Sherkston — on the way to Long Beach — the auto was struck by a train of the defendant Canadian National Railway Company. Both Kuehner and his guest-passenger were instantly killed.

Neumeier's wife and administratrix, a citizen of Canada and a domiciliary of Ontario, thereupon commenced this wrongful death action in New York against both Kuehner's estate and the Canadian National Railway Company. The defendant estate pleaded, as an affirmative defense, the Ontario guest statute and the defendant railway also interposed defenses in reliance upon it. In substance, the statute provides that the owner or driver of a motor vehicle is not liable for damages resulting from injury to, or the death of, a guest-passenger unless he was guilty of gross negligence (Highway Traffic Act of Province of Ontario [Ont. Rev. Stat. (1960), ch. 172], § 105, subd. [2], as amd. by Stat. of 1966, ch. 64, § 20, subd. [2]). It is worth noting, at this point, that, although our court originally considered that the sole purpose of the Ontario statute was to protect Ontario defendants and their insurers against collusive claims (see Babcock v. Jackson, 12 N Y 2d 473, 482-483), "Further research * * * has revealed the distinct possibility that one purpose, and perhaps the only purpose, of the statute was to protect owners and drivers against suits by ungrateful guests." (Reese, Choice of Law, 71 Col. L. Rev. 548, 558; see Trautman, Two Views on Kell v. Henderson: A Comment, 67 Col. L. Rev. 465, 469.)

[125] The plaintiff, asserting that the Ontario statute "is not available * * * in the present action", moved, pursuant to CPLR 3211 (subd. [b]), to dismiss the affirmative defenses pleaded. The court at Special Term, holding the guest statute applicable, denied the motions (63 Misc 2d 766) but, on appeal, a closely divided Appellate Division reversed and directed dismissal of the defenses (37 A D 2d 70). It was the court's belief that this result was dictated by Tooker v. Lopez (24 N Y 2d 569).

In reaching that conclusion, the Appellate Division misread our decision in the Tooker case — a not unnatural result in light of the variant views expressed in the three separate opinions written on behalf of the majority. It is important to bear in mind that in Tooker, the guest-passenger and the host-driver were both domiciled in New York, and our decision — that New York law was controlling — was based upon, and limited to, that fact situation. Indeed, two of the three judges who wrote for reversal — Judge KEATING (24 N Y 2d, at p. 580) and Judge BURKE (at p. 591) — expressly noted that the determination then being made left open the question whether New York law would be applicable if the plaintiff passenger happened to be a domiciliary of the very jurisdiction which had a guest statute.^[1] Thus, Tooker v. Lopez did no more than hold that, when the passenger and driver are residents of the same jurisdiction and the car is there registered and insured, its law, and not the law of the place of accident, controls and determines the standard of care which the host owes to his guest.

What significantly and effectively differentiates the present case is the fact that, although the host was a domiciliary of New York, the guest, for whose death recovery is sought, was domiciled in Ontario, the place of accident and the very jurisdiction which had enacted the statute designed to protect the host from liability for ordinary negligence. It is clear that, although New York has a deep interest in protecting its own residents, injured in a foreign state, against unfair or anachronistic statutes of that state, it has no legitimate interest in [126] ignoring the public policy of a foreign jurisdiction — such as Ontario — and in protecting the plaintiff guest domiciled and injured there from legislation obviously addressed, at the very least, to a resident riding in a vehicle traveling within its borders.

To distinguish Tooker on such a basis is not improperly discriminatory. It is quite true that, in applying the Ontario guest statute to the Ontario-domiciled passenger, we, in a sense, extend a right less generous than New York extends to a New York passenger in a New York vehicle with New York insurance. That, though, is not a consequence of invidious discrimination; it is, rather, the result of the existence of disparate rules of law in jurisdictions that have diverse and important connections with the litigants and the litigated issue.

The fact that insurance policies issued in this State on New York-based vehicles cover liability, regardless of the place of the accident (Vehicle and Traffic Law, § 311, subd. 4), certainly does not call for the application of internal New York law in this case. The compulsory insurance requirement is designed to cover a car-owner's liability, not create it; in other words, the applicable statute was not intended to impose liability where none would otherwise exist. This being so, we may not properly look to the New York insurance requirement to dictate a choice-of-law rule which would invariably impose liability. As Justice MOULE wrote in the course of his dissenting opinion below (37 A D 2d, at pp. 75-76), "The statute [Vehicle and Traffic Law, § 311, subd. 4] does not purport to impose liability where none would otherwise exist. We must observe that Judge KEATING'S statement ([in Tooker, 24 N Y 2d, at] p. 577) that the Legislature `has evinced commendable concern not only for the residents of this State, but residents of other States who may be injured as a result of the activities of New York residents' was in the context, not of proving that New York had a governmental interest in overriding foreign rules of liability, but of demonstrating that it was immaterial in that case that the driver and passenger, while domiciliaries of New York, were attending college in Michigan. While New York may be a proper forum for actions involving its own domiciliaries, regardless of where the accident happened, it does not follow that we should apply New York law simply because some may think it is a better rule, where doing so does not advance any New York State [127] interest, nor the interest of any New York State domiciliary."

When, in Babcock v. Jackson (12 N Y 2d 473, supra), we rejected the mechanical place of injury rule in personal injury cases because it failed to take account of underlying policy considerations, we were willing to sacrifice the certainty provided by the old rule for the more just, fair and practical result that may best be achieved by giving controlling effect to the law of the jurisdiction which has the greatest concern with, or interest in, the specific issue raised in the litigation. (See, also, Tooker v. Lopez, 24 N Y 2d 569, 584 [concurring opn.], supra.) In consequence of the change effected — and this was to be anticipated — our decisions in multi-state highway accident cases, particularly in those involving guest-host controversies, have, it must be acknowledged, lacked consistency. This stemmed, in part, from the circumstance that it is frequently difficult to discover the purposes or policies underlying the relevant local law rules of the respective jurisdictions involved. It is even more difficult, assuming that these purposes or policies are found to conflict, to determine on some principled basis which should be given effect at the expense of the others.

The single all-encompassing rule which called, inexorably, for selection of the law of the place of injury was discarded, and wisely, because it was too broad to prove satisfactory in application. There is, however, no reason why choice-of-law rules, more narrow than those previously devised, should not be successfully developed, in order to assure a greater degree of predictability and uniformity, on the basis of our present knowledge and experience. (See, e.g., Cavers, The Choice of Law Process, 121-122; Reese, Choice of Law, 71 Col. L. Rev. 548, 555, 561-562; Reese, Choice of Law: Rules or Approach, 57 Corn. L. Rev. 315, 321 et seq.; Rosenberg, Comments on Reich v. Purcell, 15 UCLA L. Rev. 641, 642, 646-647.) "The time has come," I wrote in Tooker (24 N Y 2d, at p. 584), "to endeavor to minimize what some have characterized as an ad hoc case-by-case approach by laying down guidelines, as well as we can, for the solution of guest-host conflicts problems." Babcock and its progeny enable us to formulate a set of basic principles that may be profitably utilized, for they have helped us uncover the underlying values and policies which are operative in this area of the law. To quote again from the concurring [128] opinion in Tooker (p. 584), "Now that these values and policies have been revealed, we may proceed to the next stage in the evolution of the law — the formulation of a few rules of general applicability, promising a fair level of predictability." Although it was recognized that no rule may be formulated to guarantee a satisfactory result in every case, the following principles were proposed as sound for situations involving guest statutes in conflicts settings (24 N Y 2d, at p. 585):

"1. When the guest-passenger and the host-driver are domiciled in the same state, and the car is there registered, the law of that state should control and determine the standard of care which the host owes to his guest.

"2. When the driver's conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim's domicile. Conversely, when the guest was injured in the state of his own domicile and its law permits recovery, the driver who has come into that state should not — in the absence of special circumstances — be permitted to interpose the law of his state as a defense.

"3. In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants. (Cf. Restatement, 2d, Conflict of Laws, P.O.D., pt. II, §§ 146, 159 [later adopted and promulgated May 23, 1969].)"

The variant views expressed not only in Tooker but by Special Term and the divided Appellate Division in this litigation underscore and confirm the need for these rules. Since the passenger was domiciled in Ontario and the driver in New York, the present case is covered by the third stated principle. The law to be applied is that of the jurisdiction where the accident happened [129] unless it appears that "displacing [the] normally applicable rule will advance the relevant substantive law purposes" of the jurisdictions involved. Certainly, ignoring Ontario's policy requiring proof of gross negligence in a case which involves an Ontario-domiciled guest at the expense of a New Yorker does not further the substantive law purposes of New York. In point of fact, application of New York law would result in the exposure of this State's domiciliaries to a greater liability than that imposed upon resident users of Ontario's highways. Conversely, the failure to apply Ontario's law would "impair" — to cull from the rule set out above — "the smooth working of the multi-state system [and] produce great uncertainty for litigants" by sanctioning forum shopping and thereby allowing a party to select a forum which could give him a larger recovery than the court of his own domicile. In short, the plaintiff has failed to show that this State's connection with the controversy was sufficient to justify displacing the rule of lex loci delictus.

Professor Willis Reese, the Reporter for the current Conflict of Laws Restatement, expressed approval of rules such as those suggested above; they are, he wrote, "the sort of rules at which the courts should aim" (Reese, Choice of Law, 71 Col. L. Rev. 548, 562; see, also, Reese, Choice of Law: Rules or Approach, 57 Corn. L. Rev. 315, 321, 323, 328).^[2] Indeed, in discussing the present case following the determination at Special Term that Ontario law should govern, he expressed the opinion that any other result would have been highly unreasonable (71 Col. L. Rev., at p. 563): "So far as the New York law was concerned, Judge Keating had argued in Tooker v. Lopez that New York's motor vehicle compulsory insurance law revealed a `commendable concern' not only for New York residents but also for non-residents injured by New Yorkers. On this basis, it could perhaps be argued that New York policy would be furthered by application of the New York rule imposing upon the driver the duty of exercising ordinary care for [130] the protection of his guest. But could this argument really be made with a straight face in support of an Ontario guest picked up in Ontario and who enjoyed no similar protection under Ontario Law? Was the New York rule really intended to be manna for the entire world? One can well understand the relief with which the trial judge seized upon Judge Fuld's third rule and followed it by holding the Ontario statute applicable."

In each action, the Appellate Division's order should be reversed, that of Special Term reinstated, without costs, and the questions certified answered in the negative.

BREITEL, J. (concurring).

I agree that there should be a reversal, but would place the reversal on quite narrow grounds. It is undesirable to lay down prematurely major premises based on shifting ideologies in the choice of law. True, Chief Judge FULD in his concurring opinion in the Tooker case (Tooker v. Lopez, 24 N Y 2d 569, 583, at p. 584) took the view that there had already occurred sufficient experience to lay down some rules of law which would reduce the instability and uncertainty created by the recent departures from traditional lex loci delictus. This case, arising so soon after, shows that the permutations in accident cases, especially automobile accident cases, is disproof that the time has come.

Problems engendered by the new departures have not gone unnoticed and they are not confined to the courts of this State (Juenger, Choice of Law in Interstate Torts, 118 U. Pa. L. Rev. 202, 214-220). They arise not merely because any new departure of necessity creates problems, but much more because the departures have been accompanied by an unprecedented competition of ideologies, largely of academic origin, to explain and reconstruct a whole field of law, each purporting or aspiring to achieve a single universal principle.

Babcock v. Jackson (12 N Y 2d 473), an eminently correctly and justly decided case, applied the then current new doctrine of grouping of contacts. Troubles arose only when the universality of a single doctrine was assumed (Macey v. Rozbicki, 18 N Y 2d 289; Dym v. Gordon, 16 N Y 2d 120). By the time of Miller v. Miller (22 N Y 2d 12) and the Tooker case (24 N Y 2d 569, supra), [131] the new doctrine had been displaced by a still newer one, that of governmental interests developed most extensively by the late Brainerd Currie, and the court was deeply engaged in probing the psychological motivation of legislatures of other States in enacting statutes restricting recoveries in tort cases. Now, evidently, it is suggested that this State and other States may have less parochial concerns in enacting legislation restricting tort recoveries than had been believed only a short time ago. The difficulties this case has given the courts below, and now this court, stems, it is suggested, more from a concern in sorting out ideologies than in applying narrow rules of law in the traditional common-law process (Juenger, op. cit., supra, at p. 233).

What the Babcock case (12 N Y 2d 473, supra) taught and what modern day commentators largely agree is that lex loci delictus is unsoundly applied if it is done indiscriminately and without exception. It is still true, however, that lex loci delictus is the normal rule, as indeed Chief Judge FULD noted in the Tooker case (24 N Y 2d 569, supra), to be rejected only when it is evident that the situs of the accident is the least of the several factors or influences to which the accident may be attributed (for discussion, see dissenting opn. in Tooker v. Lopez, 24 N Y 2d, at pp. 595-596). Certain it is that States are not concerned only with their own citizens or residents. They are concerned with events that occur within their territory, and are also concerned with the "stranger within the gates" (Juenger, op. cit., supra, at pp. 209-210).

In this case, none would have ever assumed that New York law should be applied just because one of the two defendants was a New York resident and his automobile was New York insured, except for the overbroad statements of Currie doctrine in the Tooker case (24 N Y 2d 569, supra), stemming from one particular school of academic thinking in the field of conflicts law (see the concurring opn. by Judge BURKE in the Tooker case, 24 N Y 2d, at pp. 586-592, and for that matter, the dissenting opn. by Judge BERGAN, in this case).

Consequently, I agree that there should be a reversal and the defenses allowed to stand. The conclusion, however, rests simply on the proposition that plaintiff has failed by her allegations to establish that the relationship to this State was sufficient [132] to displace the normal rule that the lex loci delictus should be applied, the accident being associated with Ontario, from inception to tragic termination, except for adventitious facts and where the lawsuit was brought.

BERGAN, J. (dissenting).

The doctrine of lex loci delictus, whatever its other shortcomings may be, including a somewhat abrasive effect on inconsistent law of the forum, had at least the virtues of certainty and reckonability.

But the operation of the guest statutes of other jurisdictions worked out so differently — unjustly by New York standards — that in a series of highly debatable and debated decisions from Babcock v. Jackson (12 N Y 2d 473 [1963]) to Tooker v. Lopez (24 N Y 2d 569 [1969]) this court refused to follow the rule of lex loci delictus in special situations and applied New York law in New York litigation to motor vehicle torts occurring in other jurisdictions.

The rationale of departure from the settled rule was that New York had a greater "concern" or "interest" in the controversy or the parties; or had closer "contacts" than the jurisdiction of the situs of the accident. See Miller v. Miller (22 N Y 2d 12); Farber v. Smolack (20 N Y 2d 198), and Macey v. Rozbicki (18 N Y 2d 289). The decision in Dym v. Gordon (16 N Y 2d 120) went the other way. The direction taken and justified by the rationale of "interest" or "contact", however, necessarily started with the court's preference for the local rule and a belief in its greater justice.

There is a difference of fundamental character between justifying a departure from lex loci delictus because the court will not, as a matter of policy, permit a New York owner of a car licensed and insured in New York to escape a liability that would be imposed on him here; and a departure based on the fact a New York resident makes the claim for injury. The first ground of departure is justifiable as sound policy; the second is justifiable only if one is willing to treat the rights of a stranger permitted to sue in New York differently from the way a resident is treated. Neither because of "interest" nor "contact" nor any other defensible ground is it proper to say in a court of law that the rights of one man whose suit is accepted [133] shall be adjudged differently on the merits on the basis of where he happens to live.

This crunch in the rule announced in Babcock (12 N Y 2d 473, supra) was inevitable as it worked its way into the practice. And the difficulty was recognized in Tooker (24 N Y 2d 569, supra). Although Tooker, unlike the present case, involved a New York plaintiff and thus was similar to Babcock and the cases which had followed Babcock, the opinion of the court laid it down that the New York owner of a car insured in New York would not be permitted to escape liability through the guest statute of Michigan and that this was the main ground of decision. The court in Tooker said (p. 575): "This purpose [of a statute of another jurisdiction establishing higher standards for the recovery of guests in vehicles] can never be vindicated when the insurer is a New York carrier and the defendant is sued in the courts of this State. Under such circumstances, the jurisdiction enacting such a guest statute has absolutely no interest in the application of its law."

The decision was 4-to-3; but a majority of the Judges expressly subscribed to the opinion by Judge KEATING even though Chief Judge FULD and Judge BURKE stated additional grounds of concurrence. The quoted statement of policy in the Tooker opinion, which was the court's statement and not the view of an individual Judge has the normal binding effect of such an opinion.

Reading these words of the opinion of the court the Bar would reasonably anticipate that the more basic and justifiable ground for refusing a New York vehicle the differential benefit of a foreign statute would be applied in future. Such a rule would offer more in the way of reckonability and predictability than the elusive grouping of "contacts" or "interests".

Hence the Appellate Division was justified in reading Tooker (24 N Y 2d 569, supra) to dismiss the asserted defense in this action. What the court is deciding today is that although it will prevent a New York car owner from asserting the defense of a protective foreign statute when a New York resident in whose rights it has an "interest" sues; it has no such "interest" when it accepts the suit in New York of a nonresident. This is an inadmissible distinction.

The order should be affirmed.

Orders reversed, etc.

[1] In the other concurring opinion (24 N Y 2d, at p. 585), I wrote that in such a case — where the passenger is a resident of the state having a guest statute — "the applicable rule of decision will [normally] be that of the state where the accident occurred".

[2] These rules have also been found acceptable by several other courts. (See, e.g., Arbuthnot v. Allbright, 35 A D 2d 315; Weinstein v. Abraham, 64 Misc 2d 76; Hancock v. Holland, 63 Misc 2d 811; see, also, Pryor v. Swarner, 445 F.2d 1272, 1275 et seq. [2d Cir.]; Beaulieu v. Beaulieu, 265 A. 2d 610, 617 [Maine].)

[312] Seeger Weiss LLP, New York City (TerriAnne Benedetto and Christopher A. Seeger of counsel), for appellants in the first above-entitled action.

[313] Hiscock & Barclay, LLP, Rochester (Anthony J. Piazza, Mark T. Whitford Jr. and Joseph A. Wilson of counsel), for Erie Coach Lines Company and others, respondents in the first above-entitled action.

[314] Culley, Marks, Tannenbaum & Pezzulo, LLP, Rochester (Glenn E. Pezzulo of counsel), for J&J; Trucking and others, respondents in the first above-entitled action.

Clark, Gagliardi & Miller, P.C., White Plains (Lawrence T. D'Aloise, Jr., of counsel), for appellants in the second, third and fourth above-entitled actions.

[315] Hiscock & Barclay, LLP, Rochester (Anthony J. Piazza, Mark T. Whitford Jr. and Joseph A. Wilson of counsel), for Trentway-Wager, Inc. and others, respondents in the second, third and fourth above-entitled actions.

Culley, Marks, Tannenbaum & Pezzulo, LLP, Rochester (Glenn E. Pezzulo of counsel), for J&J; Hauling, Inc. and others, respondents in the second, third and fourth above-entitled actions.

[316] Kelly & Leonard, LLP, Ballston Spa (Mitchell A. Toups and Thomas E. Kelly of counsel), for appellants in the fifth and sixth above-entitled actions.

[317] Hiscock & Barclay, LLP, Rochester (Anthony J. Piazza and Mark T. Whitford Jr. of counsel), for Coach USA, Inc. and others, respondents in the fifth and sixth above-entitled actions.

Culley, Marks, Tanenbaum & Pezzulo, LLP, Rochester (Glenn E. Pezzulo of counsel), for J&J; Hauling, Inc. and others, respondents in the fifth and sixth above-entitled actions.

Judges GRAFFEO, SMITH, PIGOTT and JONES concur with Judge READ; Judge CIPARICK dissents in part and votes to reverse in a separate opinion in which Chief Judge LIPPMAN concurs.

[318] OPINION OF THE COURT

READ, J.

Near Geneseo, New York on January 19, 2005 a charter bus carrying members of an Ontario women's hockey team plowed into the rear end of a tractor-trailer parked on the shoulder of the highway. Three bus passengers and the tractor-trailer's driver died; several bus passengers were seriously hurt. We are called upon to decide the choice-of-law issue presented by these six lawsuits, which were brought to recover damages for wrongful death and/or personal injuries.

I.

Nearly a half-century ago, in Babcock v Jackson (12 NY2d 473 [1963]), we abandoned what had long been our choice-of-law rule whereby the law of the place of the tort invariably governed. Because "in nearly all such cases, the conduct causing injury and the injury itself occurred in the same jurisdiction" (id. at 477 n 2), this rule offered "the advantages of certainty, ease of application and predictability," but at the expense of "the interest which [other] jurisdictions . . . [might] have in the resolution of particular issues" (id. at 478; see also Cooney v Osgood Mach., 81 NY2d 66, 72 [1993] [place-of-the-tort theory "failed to accord any significance to the policies underlying the conflicting laws of other jurisdictions"]).

To "accomodat[e] the competing interests in tort cases with multi-State contacts," we adopted the "center of gravity" or "grouping of contacts" approach, which gave the "controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, ha[d] the greatest concern with the specific issue raised in the litigation" (12 NY2d at 481). This new method of analysis, however, was [319] limited to competing loss-allocation — not conduct-regulating — rules.^[1] As we explained in Babcock,

"[w]here the defendant's exercise of due care in the operation of his automobile is in issue, the jurisdiction in which the allegedly wrongful conduct occurred will usually have a predominant, if not exclusive, concern. In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place" (12 NY2d at 483).

The facts of Babcock illustrate how "grouping of contacts" worked. In that case, a New York passenger in a car operated by a New York driver was injured in an automobile accident that occurred in Ontario during a weekend trip to Canada. We noted that the trip began and was to end in New York, where the car was garaged, licensed and insured, and where the driver-passenger relationship arose (id. at 482-483). The "guest" passenger sued the "host" driver in New York for negligence. At the time, the Ontario guest statute barred the passenger from recovering damages from the driver,^[2] while New York law did not.

Looking to the "grouping of contacts," we decided that New York — not Ontario, the place of the tort — possessed "the dominant contacts and the superior claim for application of its law" as to whether the passenger should "recover[] for damages for a wrong concededly committed" (id. at 483). We commented that, in this context,

"[a]lthough the rightness or wrongness of [the driver's] conduct may depend upon the law of the particular jurisdiction through which the automobile passes, the rights and liabilities of the parties which [320] stem from their guest-host relationship should remain constant and not vary and shift as the automobile proceeds from place to place. Indeed, such a result . . . accords with the interests of the host in procuring liability insurance adequate under the applicable law, and the interests of his insurer in reasonable calculability of the premium" (id. at 483-484 [internal quotation marks omitted]).

Over time, the "grouping of contacts" approach put into place by Babcock evolved into a more explicit "interest analysis." This method of deciding choice-of-law issues "reject[ed] a quantitative grouping of contacts" because "[c]ontacts obtain significance only to the extent that they relate to the policies and purposes sought to be vindicated by the conflicting laws" (Miller v Miller, 22 NY2d 12, 17 [1968]; see also Cooney, 81 NY2d at 72 ["Of the various, sometimes competing, schools of thought on choice of law, the one that emerged as most satisfactory was `interest analysis,' which sought to effect the law of the jurisdiction having the greatest interest in resolving the particular issue"]).

We refined our "interest analysis" so as "to assure a greater degree of predictability and uniformity" in Neumeier v Kuehner (31 NY2d 121, 127 [1972]), a case where a domiciliary of Ontario was killed when the automobile in which he was a passenger collided with a train in Ontario. The vehicle was owned and driven by a resident of New York, who was also killed in the accident. The passenger's wife and administratrix, a citizen of Canada and a domiciliary of Ontario, brought an action for wrongful death in New York against the driver's estate and the railway company, both of which interposed affirmative defenses involving the Ontario guest statute.^[3] The wife, asserting that the Ontario statute was unavailable, moved to dismiss the affirmative defenses, and Supreme Court denied the motion (63 [321] Misc 2d 766 [1970]). The Appellate Division reversed (37 AD2d 70 [1971]), and asked us if its order was properly made. We answered, "No."

Neumeier set up a three-rule framework for resolving choice of law in conflicts settings involving guest statutes, which by definition allocate losses after the tort occurs rather than regulate primary conduct. Under the first Neumeier rule, when the driver and passenger are domiciled in the same state, and the vehicle is registered there, the law of their shared jurisdiction controls (31 NY2d at 128). The second rule addresses the situation where the driver and the passenger are domiciled in different states, and the law of the place where the accident occurred favors its domiciliary. When the driver's conduct occurs in the state where he is domiciled, which would not impose liability, that state's law applies. Conversely, if the law of the place where the accident occurred permits the injured passenger to recover, then the driver, "in the absence of special circumstances," may not interpose a conflicting law of his state as a defense (id.; see also Cooney, 81 NY2d at 73 ["In essence, . . . the second Neumeier rule adopts a `place of injury' test for true conflict guest statute cases"]).

"In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical" (31 NY2d at 128). Thus, under the third Neumeier rule, the law of the state where the accident occurred governs unless "it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants" (id.).

Since the passenger in Neumeier was domiciled in Ontario, where the guest statute did not allow recovery, and the driver in New York, the third rule — the law of the place of the tort (i.e., Ontario) — would normally control. We saw no reason to apply the third rule's proviso since the wife "failed to show that [New York's] connection with the controversy was sufficient to justify displacing" lex loci delicti, the law of the place of the wrong (id. at 129). The wife did not show that ignoring Ontario's guest statute in a case "involv[ing] an Ontario-domiciled guest at the expense of a New Yorker . . . further[ed] the substantive law purposes of New York"; and "failure to apply Ontario's law would impair . . . the smooth working of the multi-state system [and] produce great uncertainty for litigants by sanctioning forum shopping and thereby allowing a party to select a forum [322] [countenancing] a larger recovery than [that party's] own domicile" (id. [internal quotation marks omitted]).

We have routinely applied the Neumeier framework to conflicts in loss-allocation situations not involving guest statutes. For example, the issue in Schultz v Boy Scouts of Am. (65 NY2d 189 [1985]) was whether the doctrine of charitable immunity would apply in a lawsuit brought by plaintiffs domiciled in New Jersey. The plaintiffs were the parents of two boys, one of whom committed suicide. They sued the Boy Scouts of America and the Brothers of the Poor of St. Francis, Inc. for negligent hiring and supervision of a sexually abusive brother (also a defendant), who was supplied by the Franciscan Brothers, pursuant to an agreement with the Roman Catholic Archdiocese of Newark, as a teacher at a school owned and operated by the Archdiocese, and who was a scoutmaster of a Boy Scout troop sponsored by the school and chartered by the Boy Scouts. The plaintiffs' sons attended the class taught by the brother at the school, and were members of his scout troop.

Acts of sexual abuse were alleged to have taken place mostly during Boy Scout camping outings in New York, but also at the school in New Jersey.^[4] The Boy Scouts were domiciled in New Jersey; the Franciscan Brothers in Ohio. At the time the plaintiffs' causes of action arose, New Jersey and Ohio both recognized charitable immunity while New York did not. The Ohio rule, however, denied immunity in actions based on negligent hiring and supervision.^[5] And the plaintiffs' claims had already been determined to have been barred by the New Jersey doctrine of charitable immunity in an earlier action brought by the plaintiffs in New Jersey against the Archdiocese. We held that New Jersey law governed, and that the plaintiffs were precluded from relitigating its effect in light of the final determination in their action against the Archdiocese.

Under the first Neumeier rule, New Jersey law clearly controlled the plaintiffs' claim against the Boy Scouts because the plaintiffs and this defendant had "chosen to identify themselves in the most concrete form possible, domicile, with a jurisdiction that [had] weighed the interests of charitable tort-feasors and their victims and decided to retain the defense of charitable [323] immunity" (id. at 199-200). But because this was "the first case for our review [where] New York [was] the forum-locus rather than the parties' common domicile," we examined "the reasons most often advanced for applying the law of the forum-locus and those supporting application of the law of the common domicile" (id. at 200).

We identified those reasons "most often urged" to favor the forum-locus as "(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 [would have] on future tort-feasors in the locus State" (id. at 200). We opined that the first two reasons shared "common weaknesses," since neither "necessarily require[d] application of the locus jurisdiction's law, but rather invariably mandate[d] application of the law of the jurisdiction that would either allow recovery or allow . . . greater recovery" (id.). As a result, they were "subject to criticism . . . as being biased in favor of recovery" (id.). Further, we observed, neither consideration was relevant in Schultz since there was no evidence of unpaid medical creditors or that the plaintiffs were about to become wards of the state. As for the third reason, we acknowledged that although it was "conceivable that application of New York's law in this case would have some deterrent effect on future tortious conduct" in New York, our "deterrent interest [was] considerably less because none of the parties [was] a resident and the rule in conflict [was] loss-allocating rather than conduct-regulating" (id.).

On the other side of the ledger, we toted up "persuasive reasons for consistently applying the law of the parties' common domicile." These included (1) reduced opportunities for forum shopping; (2) rebuttal of "charges that the forum-locus is biased in favor of its own laws and in favor of rules permitting recovery"; (3) "the concepts of mutuality and reciprocity support consistent application of the common-domicile rule" since "[i]n any given case, one person could be either plaintiff or defendant and one State could be either the parties' common domicile or the locus, and yet the applicable law would not change depending on their status"; and (4) such a rule was "easy to apply and [brought] a modicum of predictability and certainty to an area of the law needing both" (id. at 201).

We then turned our attention to the plaintiffs' claim against the Franciscan Brothers. We evaluated choice of law with [324] respect to this defendant under the third Neumeier rule "because the parties [were] domiciled in different jurisdictions with conflicting loss-distribution rules and the locus of the tort [was] New York, a separate jurisdiction"; and the law of the place of the tort would "normally apply" (id.). We decided, however, that this situation fit the proviso to the third rule "[f]or the same reasons stated in our analysis of the action against" the Boy Scouts; namely, this result "would further [New Jersey'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 [the Franciscan Brothers'] charitable activities in that State" (id.). In addition,

"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 [the brother's] position as Boy Scout leader" (id. at 201-202).

Finally, we rejected the plaintiffs' argument that New York public policy foreclosed application of the New Jersey charitable immunity statute. We emphasized the difficulty of upsetting the choice of law in a conflicts situation on this basis; specifically, the proponent of a public policy bar would have to "establish that to enforce the foreign law `would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal' expressed in them" (id. at 202). Further, "the proponent must establish that there [were] enough important contacts between the parties, the occurrence and the New York forum to implicate our public policy and thus preclude enforcement of the foreign law" (id.). We concluded that we did not need to decide whether enforcement of New Jersey's charitable immunity statute offended [325] New York public policy "because there [were] not sufficient contacts between New York, the parties and the transactions involved to implicate our public policy and call for its enforcement" (id. at 203).

II.

The charter bus's driver (Ryan A. Comfort), his employer (Erie Coach Lines Company), and the company that leased the bus (Trentway-Wagar, Inc.) are Ontario domiciliaries, as are (or were) all the injured and deceased passengers. The tractor-trailer driver (Ernest Zeiset) was a Pennsylvania domiciliary, as are his employer (Joseph French, doing business as J&J; Trucking) and the companies that hired the trailer (Verdelli Farms, Inc. and V.F. Transportation, Inc.). The injured passengers and the representatives of those who died (collectively, plaintiffs) filed multiple wrongful death and personal injury lawsuits in Supreme Court.

These split-domicile lawsuits presented an obvious choice-of-law issue because Ontario caps noneconomic damages where negligence causes catastrophic personal injury,^[6] while New York does not cap such damages in a no-fault case involving serious injury. Following extensive discovery, Erie Coach, Trentway^[7] and Comfort (collectively, the bus defendants) and J&J; Trucking, the administratrix of Zeiset's estate, Verdelli Farms and V.F. Transportation (collectively, the trailer defendants) moved for orders from Supreme Court determining that, under New York's choice-of-law principles, Ontario law applied to "all loss allocation issues" in these cases.

On March 23, 2009, Supreme Court granted both motions, noting that the Supreme Court of Canada had capped noneconomic damages at CDN $100,000 in 1978 dollars, which was [326] then equivalent to US $310,000. In reaching its decisions, the court concluded that "[p]roper analysis" began with Neumeier. Citing the third Neumeier rule, the judge stated, without elaboration, that "[a]pplying Ontario loss allocation laws [would] not impair the smooth working of the multi-state system, and [would] advance the relevant substantive law purposes of the jurisdiction having the most significant connections to the allocation of loss"; and that Ontario "clearly [had] the predominant interest[] in applying its loss allocation laws to its citizens, whereas New York [had] no such interest." Further, Supreme Court discussed Schultz, which it regarded as analogous; it saw no reason to consider Pennsylvania law since none of the parties requested this.

The trial of these cases was bifurcated, and, during the course of the jury trial on liability, the parties reached a settlement of that issue. In the stipulation of settlement, placed on the record on June 17, 2009, the bus defendants agreed to 90% and the trailer defendants to 10% liability. Meanwhile, plaintiffs had appealed Supreme Court's orders determining that Ontario law would govern any award of noneconomic damages to be made at a damages trial. The Appellate Division affirmed (72 AD3d 1581, 1586, 1587, 1588, 1589 [4th Dept 2010]; 74 AD3d 1813, 1814 [4th Dept 2010]).

"As a preliminary matter," the Appellate Division decided that Supreme Court "did not abuse its discretion by taking judicial notice of Ontario law . . . despite the failure of defendants to raise [its] applicability . . . as an affirmative defense and to provide the substance of the law in their pleadings in accordance with CPLR 3016 (e)" (72 AD3d at 1583). The court subscribed to the Third Department's view, expressed in Burns v Young (239 AD2d 727, 728 [3d Dept 1997]), that "because CPLR 4511 (b) permits . . . judicial notice of the laws of foreign countries that are presented `prior to the presentation of any evidence at the trial,'" a court has discretion to apply the law of a foreign country notwithstanding "a party's failure to comply with the requirement in [CPLR] 3016 (e) that the substance of such laws shall be set forth in the pleading" (72 AD3d at 1583). Further, the court rejected plaintiffs' argument that the Ontario cap was procedural rather than substantive, citing Davenport v Webb (11 NY2d 392, 393 [1962]) for the "well established" proposition that "the measure of damages is substantive" (72 AD3d at 1583).

The Appellate Division agreed with Supreme Court's bottomline conclusion that the Ontario cap applied to damages [327] recovered from the bus and trailer defendants, but conducted separate choice-of-law analyses. With respect to the bus defendants, the court looked to the first Neumeier rule, which directs that the law of the parties' common domicile — here, Ontario — governs. The court observed that applying the law of a shared domicile reduced the risk of forum shopping; rebutted the charge of local bias; and served "`the concepts of mutuality and reciprocity,'" which are "`support[ed by the] consistent application of the common-domicile law'" (id. at 1584, quoting Schultz, 65 NY2d at 201).

As between plaintiffs and the trailer defendants, the Appellate Division applied the third Neumeier rule, which prefers the law of the place of the tort. Invoking the proviso to the third rule, the court decided, however, that Ontario law should govern, reasoning that "while applying Ontario law `[might] not affirmatively advance the substantive law purposes of New York, it [would] not frustrate those interests because New York has no significant interest in applying its own law to this dispute'" (72 AD3d at 1585, quoting Schultz, 65 NY2d at 201). The court also commented that New York law created great uncertainty for the litigants because the trailer defendants were only 10% liable for the accident pursuant to the parties' settlement. If the trailer defendants' exposure to noneconomic damages was unlimited while the bus defendants' liability for this item of damages was capped, the trailer defendants might end up paying far more than their stipulated share.

Finally, the Appellate Division concluded that plaintiffs failed to meet the "`heavy burden' of establishing that the application of Ontario law violate[d] the public policy of New York" (72 AD3d at 1585, quoting Schultz, 65 NY2d at 202). The court pointed out that "`resort to the public policy exception should be reserved for those foreign laws that are truly obnoxious'" (id., quoting Cooney, 81 NY2d at 79), which was not the case here. In any event, the Appellate Division decided that the parties' contacts were too few and limited in scope to implicate New York's public policy (72 AD3d at 1585, citing Schultz, 65 NY2d at 201-202).

The Appellate Division granted plaintiffs permission to appeal, and asked us whether its orders were properly made (2010 NY Slip Op 76969[U] [4th Dept 2010]). For the reasons that follow, we answer "No" with respect to the trailer defendants.

[328] III.

On this appeal, plaintiffs again contend that the lower courts were foreclosed from engaging in choice-of-law analysis because defendants did not raise the Ontario cap in their answers. In our view, defendants' motions were properly entertained. As the Appellate Division mentioned, CPLR 4511 (b) vests Supreme Court with discretion to take judicial notice of foreign law prior to the presentation of evidence at trial. This provision states that the court shall take judicial notice of specified matters (which include the laws of foreign countries or their political subdivisions) if a party so requests; furnishes the court sufficient data to enable it to take judicial notice; and advises adverse parties of its intent to ask the court to take judicial notice. This third requirement — notice to adverse parties — must be "given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice" (CPLR 4511 [b] [emphasis added]). Defendants complied with these three conditions when they made their pretrial motions.

Plaintiffs rely on CPLR 3016 (e), however, which provides that "[w]here a cause of action or defense is based upon the law of a foreign country or its political subdivision, the substance of the foreign law relied upon shall be stated" (emphasis added). But CPLR 3016 (e) must be read together with CPLR 4511 (b). As a result, while "[o]bedience to [CPLR 3016 (e)'s] pleading requirement . . . would seem ipso facto to satisfy the trio of requirements necessary to compel judicial notice" under CPLR 4511 (b), "omission to plead the foreign law . . . need prove no more fatal, or serious, than any other omission under CPLR 3015 or 3016," and "the fact that the court can on its own volunteer to give the foreign law judicial notice under CPLR 4511 (b) should further divest CPLR 3016 (e) of any undue rigidity" (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3016:8 [emphasis added]). Further, we do not detect the complained-of unfairness or prejudice. A split-domicile lawsuit, such as this one, always presents a choice-of-law dilemma where loss-allocation rules conflict. This issue may have lain dormant during discovery, but there was no reason for plaintiffs to assume that it had vanished.^[8]

[329] Next, plaintiffs press for what they call a "single, joint Neumeier analysis" in cases, such as this one, with multiple tortfeasors. As a result, the Edwards plaintiffs argue, the trial judge "properly analyzed both sets of Defendants — those related to the bus and those related to the tractor trailer — together," although he reached the wrong conclusion. In our view, however, the correct way to conduct a choice-of-law analysis is to consider each plaintiff vis-à-vis each defendant, which is essentially the approach taken by the Appellate Division. More to the point, this is the path we ourselves have already traveled: in Schultz, the plaintiffs likewise demanded judgment, jointly and severally, against multiple defendants, and we applied the Neumeier rules separately in relation to the New Jersey-domiciled Boy Scouts and the Ohio-domiciled Franciscan Brothers.^[9] The rules in the Neumeier framework, in fact, by their very nature call for a plaintiff-by-defendant inquiry.^[10]

Here, the Ontario cap controls any award of noneconomic damages against the bus defendants because they share an Ontario domicile with plaintiffs. We described the relevant choice-of-law principle and its rationale in Cooney:

"Under the first Neumeier rule, when [the plaintiff and the defendant] share a common domicile, that law should control. Indeed, when both parties are from the same jurisdiction, there is often little reason to apply another jurisdiction's loss allocation [330] rules. The domiciliary jurisdiction, which has weighed the competing considerations underlying the loss allocation rule at issue, has the greater `interest in enforcing the decisions of both parties to accept both the benefits and the burdens of identifying with that jurisdiction and to submit themselves to its authority' . . . Moreover, this rule reduces opportunities for forum shopping because the same law will apply whether the suit is brought in the locus jurisdiction or in the common domicile, the two most likely forums" (81 NY2d at 73, quoting Schultz, 65 NY2d at 198).

We had earlier made the same point at least as forcefully in Schultz, where we stressed that "the locus jurisdiction has at best a minimal interest in determining the right of recovery or the extent of the remedy in an action by a foreign domiciliary for injuries resulting from the conduct of a codomiciliary that was tortious under the laws of both jurisdictions" (65 NY2d at 198 [emphasis added]). We cited substantial precedent — Tooker v Lopez (24 NY2d 569, 576 [1969]), Miller (22 NY2d at 18-19) and Babcock (12 NY2d at 482) — to support this proposition.

In sum, Ontario has weighed the interests of tortfeasors and their victims in cases of catastrophic personal injury, and has elected to safeguard its domiciliaries from large awards for nonpecuniary damages. In lawsuits brought in New York by Ontario-domiciled plaintiffs against Ontario-domiciled defendants, New York courts should respect Ontario's decision, which differs from but certainly does not offend New York's public policy (see Schultz, 65 NY2d at 202 [emphasizing the "heavy burden" borne by a party seeking to show that a foreign law contravenes New York public policy]).

Finally, we look to the third Neumeier rule to decide whether the Ontario cap controls with respect to the trailer defendants. Critically, the third rule establishes the place of the tort — here, New York — as the "normally applicable" choice in a conflicts situation such as this one, where the domicile of plaintiffs, the domicile of the trailer defendants and the place of the tort are different. Initially, the fact that the trailer defendants declined to advocate for Pennsylvania law does not permit them to take advantage of the Ontario cap. To rule otherwise would only encourage a kind of forum shopping. Moreover, the stipulation of settlement on liability is not relevant to "interest analysis," which seeks to recognize and respect the policy [331] interests of a jurisdiction in the resolution of the particular issue where a conflict of law exists.

The trailer defendants contend that Schultz controls, meaning that their situation is comparable to that of the Franciscan Brothers, and so the law of New York should not govern, even though the accident occurred there. We do not agree. While New York employs "interest analysis" rather than "grouping of contacts," the number and intensity of contacts is relevant when considering whether to deviate from lex loci delicti under the third Neumeier rule — i.e., whether even to analyze if displacing this "normally applicable" choice would "advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants" (Neumeier, 31 NY2d at 128).

In Schultz, New Jersey was the state where the Franciscan Brothers supplied teachers for a New Jersey school, where some of the acts of sexual abuse allegedly took place, where one of the boys committed suicide, where the two boys allegedly suffered from and were treated for psychological injuries, where the Franciscan Brothers were said to have hired and failed to fire the brother. Under these circumstances, there was every reason to evaluate, under the proviso to the third Neumeier rule, whether New Jersey law should displace New York law with respect to the negligent hiring and supervision claim asserted against the Franciscan Brothers in the plaintiffs' lawsuit. Here, by contrast, there was no cause to contemplate a jurisdiction other than New York, the place where the conduct causing injuries and the injuries themselves occurred. The trailer defendants did not ask Supreme Court to consider the law of their domicile, Pennsylvania, and they had no contacts whatsoever with Ontario other than the happenstance that plaintiffs and the bus defendants were domiciled there.

Accordingly, the orders in these cases should be modified, without costs, in accordance with this opinion and as so modified, affirmed, and the certified questions answered in the negative.

CIPARICK, J. (dissenting in part).

Because I believe that a single analysis pursuant to Neumeier v Kuehner (31 NY2d 121 [1972]) should be applied where nondomiciliary defendants are jointly and severally liable to nondomiciliary plaintiffs in a tort action arising out of a single incident within the State of New York, and that under such an analysis New York law should [332] apply to all defendants for purposes of uniformity and predictability, I respectfully dissent.

Neumeier sets forth a three-rule framework for determining what law should govern when there is a conflict between the laws of the domiciles of the parties or the state in which the tort occurred.^[11] The first Neumeier rule provides that when the plaintiff and the defendant are domiciled in the same state, the law of that state shall govern (see 31 NY2d at 128).

The second rule "addresses true conflicts, where the parties are domiciled in different States and the local law favors the respective domiciliary" (Cooney, 81 NY2d at 73 [internal quotation marks omitted]). This rule is not applicable to this case.

The third rule provides that when plaintiff and defendant are differently domiciled, the law of the location of the tort shall usually apply unless "it can be shown that displacing the normally applicable rule will advance the substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants" (Neumeier, 31 NY2d at 128).

In this matter, all plaintiffs and the bus defendants are domiciliaries of Ontario whereas the tractor-trailer defendants are domiciled in Pennsylvania. The majority opines that each defendant should be analyzed separately under the Neumeier rules relying on Schultz v Boy Scouts of Am. (65 NY2d 189 [1985]) (see majority op at 329). In applying a separate Neumeier analysis to each defendant, the majority determines that Ontario law should apply to the bus defendants, while New York law should apply to the tractor-trailer defendants. I disagree.

While the facts in Schultz lent themselves to a separate analysis for each defendant, the facts in this case do not justify such an analysis. The plaintiffs in Schultz alleged that the two defendants, the Boy Scouts of America and the Brothers of the Poor of St. Francis, had each negligently hired and supervised the same sexually abusive employee. The alleged sexual abuse occurred while the plaintiffs' sons were at a Boy Scout camp in New York and continued at a school in New Jersey. The tortious activities in Schultz took place over varied periods of time and in different locations. Moreover, there was no relationship between the defendants' actions other than the fact that they [333] employed the same alleged bad actor. Because the torts were distinct acts occurring at different times, it was appropriate for us to perform a separate choice-of-law analysis.

In contrast, in the instant case, the causes of action arise from a single incident in New York — the collision of the bus into the parked tractor-trailer — and the liability of the defendants is interrelated (see King v Car Rentals, Inc., 29 AD3d 205, 213 [2d Dept 2006] ["(b)ecause the liability of all of the defendants here is thus interrelated, the application of the laws of different jurisdictions to the several defendants may lead to unanticipated complications as potentially inconsistent law is applied"]).

Furthermore, a separate Neumeier analysis for differently domiciled defendants creates additional unpredictability and lack of uniformity in litigation that arises from a single incident. The purpose of the Neumeier rules is to "assure a greater degree of predictability and uniformity, on the basis of our present knowledge and experience" (31 NY2d at 127). Applying a single Neumeier analysis to jointly and severally liable defendants and having them subject to the same laws would further the goals of predictability and uniformity. In fact, this case illustrates the potential for grossly inequitable results when different laws are applied to defendants who are jointly and severally liable. Here, during a jury trial on liability, defendants entered into a stipulation whereby they agreed that they are 100% jointly and severally liable to plaintiffs and further agreed to apportion such liability between themselves at 90% to the bus defendants and the remaining 10% to the tractor-trailer defendants. The majority allows for a situation whereby the tractor-trailer defendants may end up paying more than the bus defendants because of the cap applied on noneconomic tort awards by Ontario — a patently absurd result. Therefore, to further the goal of predictability and uniformity, this matter should be analyzed under a single Neumeier analysis.

In analyzing this matter under a single Neumeier analysis, it is clear that, because plaintiffs and defendants are differently domiciled, the law of the site of the tort — here New York — should apply as set forth in the third Neumeier rule (see 31 NY2d at 128).^[12] Moreover, the exception to the third Neumeier rule does not apply to these facts.

[334] Indeed, applying New York law here will not "impair . . . the smooth working of the multi-state system and produce great uncertainty for litigants by sanctioning forum shopping" (31 NY2d at 129 [internal quotation marks and brackets omitted]). New York was the site of the accident and the only state in which jurisdiction over all defendants could be acquired. New York is a proper location for this action and there is no indication that the cases were brought here on account of its favorable loss-allocation rules.

In addition, the exception to the third Neumeier rule should only apply when a state other than the forum-locus state has a "greate[r] interest in the litigation" (see Schultz, 65 NY2d at 197, quoting Miller v Miller, 22 NY2d 12, 15 [1968]; see also Cooney, 81 NY2d at 72). Here, it is uncontroverted that both defendants are commercial enterprises that perform significant business in the State of New York and more significantly are frequent users of New York's highways in pursuit of their business. New York has a strong interest in the conduct of business enterprises on its highways and in properly compensating the victims of torts, whether New York or foreign domiciliaries, committed by business enterprises on its highways (see Sullivan v McNicholas Transfer Co., 224 AD2d 966, 967 [4th Dept 1996] [applying Ohio law to an accident in Ohio because "Ohio has a substantial interest in regulating conduct on its highways and in ensuring that those who use its highway(s) will compensate those whom they have injured"]).

Thus, in determining which forum has the greatest interest in this litigation, it is clear that it is New York. Not only does New York have a strong interest in regulating the conduct of commercial vehicles on its highways, it also has an even stronger interest in having commercial vehicles that use its highways maintain insurance to compensate victims of torts committed by said vehicles. In contrast, Ontario's primary interest in having its law applied and capping nonpecuniary losses is to keep motor vehicle insurance costs low (see Arnold v Teno, [1978] 2 SCR 287 ¶ 109). That interest, however, need not extend to commercial vehicles operating outside of Ontario and subject to the loss-allocation laws of those states.

Finally, because New York is "the only State with which [all] parties have purposefully associated themselves" (Cooney, 81 NY2d at 74) and availed themselves of New York highways for profit and tourism, applying New York law is entirely appropriate in this matter.

[335] Accordingly, I would reverse the order of the Appellate Division.

In each case: Orders modified, etc.

[1] Loss-allocation rules "prohibit, assign, or limit liability after the tort occurs," whereas conduct-regulating rules "have the prophylactic effect of governing conduct to prevent injuries from occurring" in the first place (Padula v Lilarn Props. Corp., 84 NY2d 519, 522 [1994] [emphasis added]).

[2] This statute provided that "the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in . . . the motor vehicle" (see Highway Traffic Act of Province of Ontario [Ontario Rev Stat (1960) ch 172], § 105 [2], quoted in Babcock, 12 NY2d at 477).

[3] When we handed down Neumeier, the Ontario guest statute provided that the owner or driver of a motor vehicle was not liable for damages for the injury or death of a guest-passenger in the absence of gross negligence (see Highway Traffic Act of Province of Ontario [Ont Rev Stat (1960) ch 172], § 105 [2], as amended by Ont Stat 1966, ch 64, § 20 [2], discussed in Neumeier, 31 NY2d at 124). We noted in Neumeier that although in Babcock we considered that the statute's sole purpose was to protect Ontario defendants and their insurers from collusive lawsuits, "[f]urther research . . . revealed the distinct possibility that one purpose, and perhaps the only purpose [of the statute], was to protect owners and drivers against suits by ungrateful guests" (31 NY2d at 124 [citations and internal quotation marks omitted]).

[4] We observed that "both parties and the dissent implicitly assume[d]" that "the locus of the tort . . . [was] New York because most of [the brother's] acts were committed [there]" (Schultz, 65 NY2d at 195).

[5] We speculated that it was for this reason that the Franciscan Brothers never claimed that Ohio law governed (Schultz, 65 NY2d at 195).

[6] The clearest statement of Canada's rule appears in Andrews v Grand & Toy Alberta, Ltd. ([1978] 2 SCR 229 ¶ 98; see also Thornton v Prince George School Dist. No. 57, [1978] 2 SCR 267 ¶ 38; Arnold v Teno, [1978] 2 SCR 287 ¶¶ 108-109). The cap apparently applies only to "catastrophic personal injury cases" arising from negligence and medical malpractice (see Young v Bella, [2006] 1 SCR 108 ¶¶ 62-66 [Supreme Court of Canada rejected a nonpecuniary cap for defamation damages (¶ 65); stated that cases other than catastrophic personal injury cases do not raise the same policy considerations (id.); and left open the question whether policy considerations might warrant a cap in other circumstances (¶ 66)]).

[7] Parent companies originally listed as defendants (Coach Canada, Inc., Stagecoach Group, PLC and Coach USA, Inc.) successfully moved for dismissal.

[8] With respect to another preliminary matter raised by the Roach plaintiffs — whether the Ontario cap is "procedural" or "substantive" — we conclude that, however the cap may be characterized, it is a loss-allocation rule subject to "interest analysis" under New York's choice-of-law principles.

[9] The dissent seeks to distinguish Schultz from this case on the ground that the torts alleged in the former "were distinct acts occurring at different times" while here "the causes of action arise from a single incident" (dissenting op at 333). But regardless of the factual dissimilarities between the two cases, the defendants in Schultz were — just like defendants in this case — subject to joint and several liability for their separate allegedly tortious acts.

[10] The dissent opines that "[a]pplying a single Neumeier analysis to jointly and severally liable defendants and having them subject to the same laws would further the goals of predictability and uniformity" (dissenting op at 333). Making multiple defendants ultimately subject to the same loss-allocation rules might make management of a case simpler for the courts and the parties. A "single . . . analysis," however, would not guarantee "predictability and uniformity." For one thing, under this approach the choice of law for loss allocation in a multi-state, multi-tortfeasor case would depend on which potential defendants a plaintiff chose to sue. The fact is, when we departed from lex loci delicti in Babcock, we knowingly sacrificed a degree of certainty so as to honor our sister states' interests in enforcing their own loss-allocation rules with respect to their own domiciliaries (see Babcock, 12 NY2d at 478; Cooney, 81 NY2d at 72).

[11] While the Neumeier rules specifically referred to guest statutes, the rules have been expanded to cover other loss-allocation conflicts (see Cooney v Osgood Mach., 81 NY2d 66, 73 [1993]).

[12] While the enumerated Neumeier rules describe situations with one plaintiff and one defendant, I see no reason why the rule should not be applied to situations, such as here, where there are multiple jointly and severally liable defendants (see Restatement [Second] of Conflict of Laws § 172).

Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

[564] Charles E. Keeler, for appellants.

Harry J. Bradley, for appellee.

OPINION BY MR. JUSTICE COHEN, July 2, 1970:

This is an appeal from a judgment entered against Michael Cipolla and his parents and natural guardians, appellants, in accordance with Pa. R.C.P. 1035. The record indicates that Michael Cipolla and John Shaposka, Jr., appellee, are former schoolmates at the Brown Technical School in Wilmington, Delaware. On January 24, 1966, after classes had ended for the day, appellee was driving Michael to appellants' home in Pennsylvania when the automobile in which they were riding became involved in a collision in Delaware in which Michael was injured. Shaposka is a Delaware resident as is his father in whose name the car was registered in Delaware.

The sole question involved in this appeal is whether the legal effect of the guest-host relationship should be determined by Delaware or Pennsylvania law. If Delaware law applies, appellants will be barred from recovering since Delaware's Guest Statute, Del. Code Ann. tit. 21, § 6101 (a), prohibits a guest from recovering for his host's negligence. The statute does permit recovery for intentional or wilful or wanton misconduct, but appellants argue only that appellee was guilty of ordinary negligence. Pennsylvania has no guest statute, [565] and if its law applies, appellants will be able to recover if they can prove appellee was negligent The court below concluded that Delaware law applied and granted appellee's motion for summary judgment.

Under our decisions in Kuchinic v. McCrory, 422 Pa. 620, 222 A. 2d 897 (1966), McSwain v. McSwain, 420 Pa. 86, 215 A. 2d 677 (1966), and Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A. 2d 796 (1964), we must determine whether Delaware or Pennsylvania has the greater interest in the application of its law to the question now before us. At the outset it might be noted that this case is much more difficult than either Kuchinic or McSwain for both of those cases presented a false conflict; that is, an analysis of the policies behind the competing laws indicated that in each case the application of one state's law (in Kuchinic, Georgia; in McSwain, Colorado) would not further those policies, Cavers, The Choice-of-Law Process, 29-30 (1965); Kuchinic, supra at 624 n.4. The fact that Cipolla is a resident of Pennsylvania which has adopted a plaintiff-protecting rule and Shaposka is a resident of Delaware which has adopted a defendant-protecting rule takes this case out of that category and requires us to undertake a deeper analysis than was necessary in those cases.^[1]

[566] In determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident, the contacts being relevant only if they relate to the "policies and interests underlying the particular issue before the court." Griffith, supra at 21. When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state's contacts must be measured on a qualitative rather than quantitative scale. Tooker v. Lopez, 24 N.Y. 2d 569, 576, 301 N.Y.S. 2d 519, 524 (1969).

As it is Pennsylvania's policy that its guests should be permitted to recover for injuries caused by their hosts' negligence and as appellants are Pennsylvania residents, Pennsylvania is a concerned jurisdiction and has a contact relevant to the issue before us. This is the only relevant contact with Pennsylvania, however. As it is Delaware's policy that its hosts should not be required to compensate their guests for their (the hosts') negligence and as appellee is a Delaware resident, Delaware is a concerned jurisdiction and has a contact relevant to the issue before us. The fact that the automobile involved in the accident is registered and housed in Delaware gives that state another contact for it appears that insurance rates will depend on the state in which the automobile is housed rather than the domicile of the owner or driver. Morris, Enterprise Liability and the Actuarial Process — The Insignificance of Foresight, 70 Yale L.J. 554, 574 (1961). Thus, it appears that Delaware's contacts are qualitatively greater than Pennsylvania's and that it has the greater interest in having its law applied to the issue before us.^[2]

[567] Also, it seems only fair to permit a defendant to rely on his home state's law when he is acting within that state.^[3]

"Consider the response that would be accorded a proposal that was the opposite of this principle if it were advanced against a person living in the state of injury on behalf of a person coming there from a state having a higher standard of care or of financial protection. The proposal thus advanced would require the community the visitor entered to step up its standard of behavior for his greater safety or lift its financial protection to the level to which he was accustomed. Such a proposal would be rejected as unfair. By entering the state or nation, the visitor has exposed himself to the risk of the territory and should not subject persons living there to a financial hazard that their law had not created." Cavers, supra at 146-7.

Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state's law just because a visitor from a state offering higher protection decides to visit there. This is, of course, a highly territorial approach, but "departures from the territorial view of torts ought not to be lightly undertaken." Gordon v. Parker, 83 F. Supp. 40, 42 (D. Mass. 1949). "To withdraw . . . actions and affairs from the reach of domestic law because the persons (or at least one of the persons) participating in them are not domestic to the state causes a wrench away from customary attitudes toward law that may lead the disadvantaged party to `regard the distinction as involving a personal discrimination against him rather than as a step toward comity between states.'" Cavers, supra at 135. The very use of the term true conflict implies that there is no one correct answer, but as a general approach a territorial view seems preferable to a personal view.

[568] These approaches to the solution of this true conflict lead to the conclusion that Delaware has a greater interest in the application of its law than does Pennsylvania.

Judgment affirmed.

CONCURRING OPINION BY MR. CHIEF JUSTICE BELL:

I believe the issues in this case should be determined and decided by lex loci delicti — see my dissenting Opinion in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A. 2d 796. However, if this test be not applied, it is clear that the Majority Opinion is correct when it affirms the judgment, because Delaware's contacts were more important and both qualitatively and quantitatively greater than Pennsylvania's.

DISSENTING OPINION BY MR. JUSTICE ROBERTS:

I agree with the majority that the instant case presents us with a true conflict. I cannot agree, however, that the conflict is properly resolved by the application of Delaware law, and hence I must respectfully dissent.

To reach its result the majority advances two separate theories: (1) "Delaware's contacts are qualitatively greater than Pennsylvania's and . . . it has the greater interest in having its law applied." (2) A "territorial view" of torts is desirable and "it seems only fair to permit a defendant to rely on his home state's law when he is acting within that state." I will discuss the two theories in turn.

The first theory is an attempt to apply the law as set forth in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A. 2d 796 (1964), to the facts of this case. In Griffith we stated that conflicts of law would thereafter be resolved by applying the law of the predominantly concerned jurisdiction, with the strength of jurisdictional concern being measured by the relevant contacts each jurisdiction had with the underlying transaction. [569] As the majority correctly notes, however, a "contact" is relevant only if it relates to the "policies and interests underlying the particular issue before the court." Griffith, 416 Pa. at 21, 203 A. 2d at 805.

My disagreement with the majority comes in the majority's assertion that there is more than one policy underlying the issue before the court, the Delaware guest statute. Naturally, it is always difficult to read the legislative mind, and courts have discovered a host of reasons for guest statutes. It has been suggested, for example, that guests statutes were designed to prevent collusive suits between guest and host;^[4] and that they were intended to grant injured parties in other cars priority over the "ungrateful guest" in the assets of the negligent driver.^[5] The majority suggests that guest statutes are designed to lower insurance rates, and that the place where the automobile is housed is therefore a relevant contact, because this is how insurance rates are determined.^[6]

I do not believe, however, that Delaware passed its guest statute for the purpose of lowering the insurance rates of those who house their automobiles in Delaware. I reach this conclusion for several reasons. For one, [570] even assuming that the barring of guest-host suits does result in lower costs to insurance companies, it is far from clear whether the benefits would inure to Delaware residents^[7] or merely aid insurance companies doing business in Delaware.^[8] Further, even if the savings were passed on to the consumer, the impact of this savings on insurance rates appears to me to be highly speculative. Professor Morris, in the article relied on by the majority, indicates that such guest claims are likely to have only a slight impact on insurance rates, particularly for a state which will not apply its guest statute in accidents which occur in common law jurisdictions.^[9] See Morris, "Enterprise Liability and the Actuarial Process — The Insignificance of Foresight," 70 Yale L.J. 554, 575-76 (1961).

Of course, a statute could be passed for a particular purpose, even though it is poorly designed to effectuate that purpose. But I do not believe that is the case here, for neither the Legislature nor the courts of Delaware have ever mentioned low insurance rates as the purpose of the guest statute. In fact, the sole purpose of the Delaware guest statute, as set forth by its courts, "is to protect one who generously, without accruing benefit, has transported another in his motor vehicle. Engle v. Poland, 8 Terry 365, 91 A. 2d 326 (1952); Colombo v. Sech, 2 Storey 575, 163 A. 2d 270 (1960)." [571] Fields v. Synthetic Ropes, Inc., 219 A. 2d 374, 376 (Del. Superior Ct. 1966).

That Delaware construes its guest statute with only the "generous host" purpose in mind can be seen in Mumford v. Robinson, 231 A. 2d 477 (Del. 1967). There the guest and host, both Delaware residents, were close personal friends who were on their way to a fabric shop when the accident occurred. The guest, however, had promised to give the host a sewing lesson upon their return from the shop. The Court noted that "[n]o financial consideration was promised or expected; Mrs. Parsons [the guest] was simply doing her friend a favor." 231 A. 2d at 479. Nevertheless, the Court held that the sewing lesson constituted a "sufficiently tangible" benefit to the host to meet the demands of the statute. The guest was therefore allowed to recover — and no mention is made of the effect such recovery might have on Delaware insurance rates.

Since I do not believe that the Delaware guest statute was designed to lower insurance rates, I cannot agree that the domicile of the automobile is a relevant contact. Hence I cannot agree that, under Griffith, we must apply Delaware law because its contacts are "qualitatively greater" than Pennsylvania's.

The second theory is based on the view that it is "only fair to permit a defendant to rely on his home state's law when he is acting within that state". I believe that this emphasis on the "territorial view of torts" is misplaced. As the majority notes, the guest statute is not conduct regulating, so the defendant was not in any sense relying on Delaware law when he was driving. Nor do I believe that the defendant's father was relying on Delaware law when he paid his premiums. It seems doubtful to me that the insured ever took into account the possibility that a Pennsylvania guest could not recover against him for a Delaware [572] accident,^[10] but could for one in Pennsylvania or New Jersey.^[11] And if the majority means that the insurance company, here Allstate, relied on not being held liable when setting its rates, I agree with Professor Morris that "[t]he theory . . . is tautological. The rules of liability are to be dictated by insurance practices which are, in turn, dictated by the rules of liability. All that can be concluded from such a premise is that whatever is, should be." Morris, "Enterprise Liability and the Actuarial Process — The Insignificance of Foresight," 70 Yale L.J. 554, 581-82 (1961) (footnote omitted).

As I have indicated, only the first theory advanced by the majority is consistent with Pennsylvania law. While I do disagree with the assertion that the place where the automobile is housed is a relevant contact, I quite agree with the majority's statement that the instant case presents a true conflict. Further, I believe that we are presented with a case where, on the basis of contacts, there is no predominantly concerned jurisdiction. Delaware seeks to protect the "generous host" from liability; Pennsylvania is concerned to see that a guest injured by his host's negligence is compensated for his injuries. In my view, each State has but one relevant contact with respect to host-guest liability — [573] the domicile of the party who will benefit from their respective State's policy.

With the interests of both States evenly balanced, I believe that the appropriate method of resolving the conflict is to choose what has been termed "the better rule of law".^[12] This approach has been adopted, in varying forms, by several other jurisdictions. See, e.g., Clark v. Clark, 107 N.H. 351, 222 A. 2d 205 (1966); Heath v. Zellmer, 35 Wis. 2d 578, 151 N.W. 2d 664 (1967); cf. Schneider v. Nichols, 280 Minn. 139, 158 N.W. 2d 254 (1968). It is an approach consistent with our desire for a choice of law which will result in "`justice, fairness and "the best practical result"'". Griffith v. United Air Lines, Inc., 416 Pa. at 20, 203 A. 2d at 805 (quoting Judge Fuld in Babcock v. Jackson, 12 N.Y. 2d 473, 481, 240 N.Y.S. 2d 743, 749, 191 N.E. 2d 279, 283 (1963)). But it is not intended as a disguise for a parochial choice of law. Mr. Chief Justice KENNISON, speaking for the New Hampshire Court, has stated:

"We prefer to apply to the better rule of law in conflicts cases just as is done in nonconflicts cases, when the choice is open to us. If the law of some other state is outmoded, an unrepealed remnant of a bygone age,. . . we will try to see our way clear to apply our own law instead. If it is our own law that is obsolete or senseless (and it could be) we will try to apply the other state's law." Clark v. Clark, 107 N.H. 351, 355, 222 A. 2d 205, 209 (1966).

In choosing the "better rule of law" I would examine the policies behind both rules to see which currently [574] represents "the sounder view of the law".^[13] I would also refer to the decisions of other states, particularly when they make clear that the policy of one of the concerned jurisdictions is either "regressing" or "emerging". See A. Von Mehren & D. Troutman, The Law of Multistate Problems 377, 394 (1965). In this way the strength of the policies behind the differing rules of law can be assessed, and the rule with the "stronger policy" today can be chosen. See id. at 377; cf. Milliken v. Pratt, 125 Mass. 374 (1878) (concerning capacity of married women to make contracts).

To demonstrate which is the better rule of law in the instant case, I will examine the conflicts cases in the area of host-guest liability, the constructions which guest statute jurisdictions — including Delaware — give their statutes, and the views of courts and scholars on the policy underlying guest statutes. From this examination it will be seen that guest statutes such as Delaware's clearly represent "regressing" policies and that the common law rule represents the better rule of law.

In conflicts decisions involving guest statutes I have been unable to find a single case in the jurisdictions which have abandoned lex loci in which the guest statute, rather than the common law, has been chosen. The common law rule has been chosen where all the parties were from the common law state, but the accident occurred in the guest statute state: e.g., Kennedy v. Dixon, 439 S.W. 2d 173 (Mo. 1969); Wessling v. Paris, 417 S.W. 2d 259 (Ky. 1967); Clark v. Clark, supra; Kuchinic v. McCrory, supra; Wilcox v. Wilcox, 26 Wis. 2d 617, 133 N.W. 2d 408 (1965); Babcock v. [575] Jackson, supra; where the guests and hosts were from a guest statute state, and the driver of a second car, from the common law state, had interpleaded the host: Heath v. Zelmer, 35 Wis. 2d 578, 151 N.W. 2d 664 (1967); where the plaintiff-guest was from a common law jurisdiction, the defendant-host from a guest statute jurisdiction, and the accident occurred in the guest statute state: Schneider v. Nichols, 280 Minn. 139, 158 N.W. 2d 254 (1968) (the court noting that it could find no other decision exactly in point factually); and where the host, guest, and car were from a guest statute jurisdiction, but were suing in a common law jurisdiction for an accident which occurred there: Conklin v. Horner, 38 Wis. 2d 468, 157 N.W. 2d 579 (1968); Kell v. Henderson, 47 Misc. 2d 992, 263 N.Y.S. 2d 647 (Sup. Ct. 1965), aff'd mem., 26 App.Div. 2d 595, 270 N.Y.S. 2d 552 (3d Dep't 1966).

Even in states which have guest statutes on the books, "[s]uch statutes are in general less rigorously applied today than when they were first enacted, and are subjected to increasing criticism". Leflar, "Choice-Influencing Considerations in Conflicts Law," 41 N.Y. U.L. Rev. 267, 278 n.49 (1966). For example, in Prager v. Isreal, 15 Cal. 2d 89, 98 P. 2d 729 (1940), the court held that a plaintiff who was injured with one foot on the running board and one in the car was not barred by the guest statute, because she was not being "transported". On the same theory the Kansas Supreme Court in Chapman v. Parker, 203 Kan. 440, 454 P. 2d 506 (1969), allowed recovery to a guest who was injured entering a car, distinguishing it from a past decision denying recovery to a guest leaving the car. See also Economou v. Anderson, 4 Ohio App. 2d 1, 211 N.E. 2d 82 (1965) (host slammed door on guest's foot; held: plaintiff not being "transported" and therefore may recover). And in O'Donnell v. Mullaney, 66 Cal. 2d 994, 59 Cal. Rptr. 840, 429 P. 2d 160 (1967), the [576] California Supreme Court seized on the words "vehicle upon a highway" to hold that a guest injured on a private roadway may recover for the negligence of his host. The Court also pointed out: "[T]he relationship between the driver and occupant of a motor vehicle may fluctuate during the course of a single trip, as circumstances bring them within or without the statute". 66 Cal. 2d at 998, 59 Cal. Rptr. at 842. See also Rowe v. United States Fidelity & Guaranty Co., 375 F. 2d 215 (4th Cir. 1967) (close questions as to whether plaintiff is guest or passenger should be resolved in favor of passenger, since guest statutes should be strictly construed).

In fact, Delaware itself construes its statute quite narrowly. See e.g., Mumford v. Robinson, 231 A. 2d 477 (Del. 1967) (discussed supra). Nor will Delaware apply its guest statute to an accident which occurs in a common law jurisdiction. In Friday v. Smoot, 211 A. 2d 594 (Del. 1965), Delaware applied New Jersey law allowing recovery for a host's negligence in an accident which occurred in New Jersey, but involved a Delaware guest and host. Although the rationale for this choice of law was the Court's refusal to abandon the rule of lex loci, the result of the decision is that Delaware itself limits the scope of its policy and the protection it will give to its resident-hosts. Clearly, if the accident involved in the instant case occurred at the end of the trip in Pennsylvania, rather than in the middle of the trip in Delaware, Delaware itself would apply Pennsylvania law and allow plaintiff to recover for the negligence of his host.

Not only do the results of the above cases show that guest statutes represent a regressing policy, weakened by numerous artificial exceptions, but the comments of courts and scholars on the matter well demonstrate that guest statutes do not represent the "better rule of law". Professor Pedrick has written:

[577] "At an early stage in automobile litigation and at a time when automobile insurance companies were concerned with limiting their function as far as possible a strange alliance between insurers and farm groups secured passage in a large number of states of the `automobile guest statutes'. These statutes resulting from hitchhiker suits against uninsured or underinsured drivers and intra-family suits against insured defendants were aimed at relieving the driver (and his insurer) from liability save for the most horrendous performances at the wheel. . . .

"It is a tribute to the lobby system of legislation that in this country a surgeon operating on a charity patient is bound to exercise ordinary care but is permitted, should he drive his patient home from the hospital, to abandon that standard and be subjected to liability only on proof of gross negligence or wilful and wanton misconduct."

Pedrick, "Taken for a Ride: The Automobile Guest and Assumption of Risk", 22 La. L. Rev. 90, 91-92 (1961) (footnotes omitted).

In Clark v. Clark, 107 N.H. 351, 356-57, 222 A. 2d 205, 210 (1966), Mr. Chief Justice KENNISON noted:

"Legislative persuasion was largely in terms of guest relationships (hitchhikers) and uninsured personal liabilities that are no longer characteristic of our automotive society. . . . The problems of automobile accident law then were not what they are today. New Hampshire never succumbed to this persuasion. No American state has newly adopted a guest statute for many years. Courts of states which did adopt them are today construing them much more narrowly, evidencing their dissatisfaction with them. . . . Though still on the books, they contradict the spirit of the times."

See also Health v. Zellmer, 35 Wis. 2d 578, 602, 151 N.W. 2d 664, 675 (1967) ("[T]he rule of ordinary negligence, rather than gross negligence or `wanton or wilful' [578] conduct, makes better socioeconomic sense in modern America. It is the sounder law. The Indiana law [a guest statute] is an anachronism."); Trautman, "Two Views on Kell v. Henderson: A Comment," 67 Colum. L. Rev. 465, 470 (1967) (guest statutes presupposed a more general absence of insurance than is characteristic of our automotive society today and contradict the spirit of the times).

After examining the views of the authorities around the country, judicial and academic, the construction that states place on their own guest statutes, and the construction which Delaware itself has adopted, I am led to the conclusion that allowing recovery by the guest for his host's negligence represents the better rule of law in the circumstances of the instant case. It must be remembered, however, that it is only because I believe that Delaware and Pennsylvania, on the basis of relevant contacts, are equally concerned that I feel free to choose either jurisdiction's law. I have in the end concluded that Pennsylvania's rule is the better rule of law, not out of "State chauvinism",^[14] but because I am firmly convinced that it represents "emerging" policy and the "sounder view of the law".

I dissent and would remand this case for trial.

[1] It is the rare conflicts case involving a guest statute in which the host and guest are domiciled in different states. See Annot., 95 A.L.R. 2d 12 and Supplement thereto. In the ordinary case therefore it is often possible to find a false conflict, Babcock v. Jackson, 12 N.Y. 2d 473, 240 N.Y.S. 2d 743 (1963); Kennedy v. Dixon (Mo.), 439 S.W. 2d 173 (1969). The only case we have found presenting a factual situation similar to the one before us is Schneider v. Nichols, 280 Minn. 139, 158 N.W. 2d 254 (1968), but there the court relied on the fact that the defendant had recently moved from Minnesota to North Dakota (which had the guest statute), had a Minnesota drivers license and drove a vehicle equipped with Minnesota license plates.

[2] In this analysis the fact that the accident occurred in Delaware is not a relevant contact because the Delaware statute does not set out a rule of the road.

[3] See Cavers' Principle 2, supra at 146.

[4] See, e.g., Kuchinic v. McCrory, 422 Pa. 620, 624, 222 A. 2d 897, 899 (1966); Clark v. Clark, 107 N.H. 351, 356, 222 A. 2d 205, 209 (1966); Stephan v. Proctor, 235 Cal. App. 2d 228, 45 Cal. Rptr. 124 (Ct. of App. 1965). In the instant case, however, it does not matter if guest statutes are in fact designed to prevent collusive lawsuits between guest and host, because prevention of collusiveness is basically a forum-related concern. See Heath v. Zellmer, 35 Wis. 2d 578, 151 N.W. 2d 664, 669 n.4 (1967).

[5] Although this suggested policy was accepted by New York in Dym v. Gordon, 16 N.Y. 2d 120, 262 N.Y.S. 2d 463, 209 N.E. 2d 792 (1965), the New York Court of Appeals has since rejected it as not being a correct construction. See Tooker v. Lopez, 24 N.Y. 2d 569, 301 N.Y.S. 2d 519, 249 N.E. 2d 394 (1969).

[6] I am assuming that the insurance practices set forth in Professor Morris' article still obtain today, nine years after the article was published. No data has been presented to us on this question.

[7] As the majority quite correctly notes, Professor Morris tells us that automobile insurance rates do not depend on the residence of the owner or driver of the vehicle.

[8] The liability insurance carrier for the defendant's vehicle is the Allstate Insurance Company of Valley Forge, Pennsylvania. Compare Conklin v. Horner, 38 Wis. 2d 468, 478, 157 N.W. 2d 579, 584 (1968): "[T]he appellant insurance company is called `Nationwide Insurance Co.,' a name consistent with the wide territorial area of insurance company responsibility, hardly indicative that it relied solely upon local laws for setting its rates."

[9] Delaware still applies lex loci in tort cases. See Friday v. Smoot, 211 A. 2d 594 (Del. 1965).

[10] I am assuming, of course, that under Delaware's interpretation of its guest statute, the guest in the instant case was "transported. . . without payment" within the meaning of the Delaware guest statute. Although it might be argued that the host did receive some benefit from the trip (he was driving the plaintiff to plaintiff's home so that plaintiff could return defendant's tools to him), counsel for the plaintiff has chosen not to raise this claim. See Mumford v. Robinson, supra.

[11] See note 6 supra. See also Tooker v. Lopez, 24 N.Y. 2d 569, 577, 301 N.Y.S. 2d 519, 526, 249 N.E. 2d 394, 399 (1969): "`"Though our nation is divided into fifty-one separate legal systems, our people act most (of) the time as if they lived in a single one . . . (They suffer from a) chronic failure to take account of differences in state laws."'"

[12] The phrase is Professor Leflar's. See Leflar, "Choice Influencing Considerations in Conflicts Law," 41 N.Y.U.L. Rev. 267, 295-304 (1966); Leflar, "Conflicts Law: More on Choice-Influencing Considerations," 54 Cal. L. Rev. 1584, 1587-88 (1966).

[13] "Another choice-influencing consideration that must inevitably influence the decision of a court is its search for the `better law' — one that to the court appears to present the sounder view of the law in light of the socio-economic facts of life at the time when the court speaks." Heath v. Zellmer, 35 Wis. 2d 578, 598, 151 N.W. 2d 664, 673 (1967).

[14] Clark v. Clark, 107 N.H. 351, 354, 222 A. 2d 205, 208 (1966).