Lect. 2
1/14/2016
Personal jurisdiction
Choice of law
Recognition of foreign judgments
Constitutional
Sub-constitutional
What are you doing when you do
choice of law?
- A Pennsylvania husband and wife
get into a car accident in New York.
- The wife sues the husband in state
court in Vermont.
- Pennsylvania has interspousal
immunity; NY and Vermont do not.
It’s like statutory interpretation:
The Vermont court is trying to
determine whether Pennsylvania
officials want their interpousal
immunity law to apply to Pennsylvania
couples who get into accidents out of
state...
It’s like international law:
There is a division of lawmaking
authority that transcends states
(and nations). Vermont does not
have the power to determine the
capacity of Pennsylvanians to sue
one another after having accidents
in New York.
It’s like procedure:
The Vermont court needs to choose
whether New York or Pennsylvania
law should be used, and it has its
own rules (like its rules for service or
joinder) to make that choice.
The Traditional Approach
Alabama Great Southern RR Co v
Carroll
(Ala. 1892)
territorialism
vested rights theory
legal realism
lex loci delicti
What if Carroll had fallen in Miss, felt OK,
walked to La and there had his harm manifest
itself?
§ 377. The Place Of Wrong
The place of wrong is in the state where
the last event necessary to make an actor
liable for an alleged tort takes place.
Rule 1. …when a person sustains bodily
harm, the place of wrong is the place
where the harmful force takes effect upon
the body.
• Assume the plaintiff is poisoned by the defendant in Alabama, gets
sick in Mississippi, and dies in Louisiana. What state's law applies for a
tort action against the defendant? Why?
• § 377. The Place Of Wrong
• Rule 2. When a person causes another voluntarily to take a
deleterious substance which takes effect within the body, the place of
wrong is where the deleterious substance takes effect and not where
it is administered.
• What if the Carroll's wife, who lives with Carroll in Alabama, had sued
the railroad for loss of consortium. What law would apply?
Assume Carroll had died in the Miss. accident
and his wife sued for wrongful death?
• § 391. Right Of Action For Death
• The law of the place of wrong governs the right of action for death.
• D, in Mississippi, makes material misrepresentations by phone to P in
Alabama. In reliance upon these representations, P sends goods from
Alabama to D, in Mississippi. D keeps the goods. P sues D for fraud (a
tort). Which law applies?
• D, broadcasting in Alabama, slanders P. The broadcast is heard in
Mississippi and Louisiana. P has a good reputation in both states,
which is affected. Which state's or states' law applies?
• § 377. The Place Of Wrong
• Rule 5. Where harm is done to the reputation of a person, the place
of wrong is where the defamatory statement is communicated.
• D lives in Mass.
• His dog strays from Mass to NH, bites P there
• Mass follows the dangerous propensity (one free bite) approach –
that is, a negligence approach negligence approach
• NH, has strict liability
• which law applies?
• Place of the wrong determines:
• whether damages are recognized (eg psychological
harm, loss of consortium, wrongful death
• limitations on damages, exemplary (eg punitive)
damages
• standard of care (negligence, strict liability)
• whether contributory negligence or comparative fault
applies
• even when act of P’s negligence occurs in another state
some fudging…
• By the law of Mississippi, due care requires that every
locomotive be double checked for defective links.
• By the law of Alabama, there is no such requirement.
• The inspector for Alabama Great Southern RR checked
for defects in Alabama once.
• The link broke in Mississippi and Carroll was injured
there.
• Rather than suing the Railroad, Carroll sues the
inspector in Alabama for negligent inspection (so
Mississippi’s fellow servant rule is not relevant).
• Under the First Restatement, does Alabama or
Mississippi law apply concerning the question of
whether due care requires a double check for
defective links?
• § 380(2)
• Where by the law of the place of wrong, the liabilitycreating character of the actor's conduct depends
upon the application of a standard of care, and such
standard has been defined in particular situations by
statute or judicial decision of the law of the place of
the actor's conduct, such application of the standard
will be made by the forum.
• By the law of Alabama, a police officer has qualified
immunity – liable for damages in course of duty only
if reckless.
• No such immunity in Mississippi.
• Officer D, acting in AL, negligently but not recklessly
shoots P in the course of an arrest of X
• P harmed in MS
• Is D liable to P?
• § 382 A person who acts pursuant to a privilege conferred by the law
of the place of acting will not be held liable for the results of his act in
another state.
• Scheer v Rockne Motors Corp.
• D in NY gave X car but did not authorize him to go to
Ontario,
• X goes to Ontario
• law of Ontario created liability on D for X’s torts
• law of NY did not
• Does NY or Ontario law apply?
• § 387 When a person authorizes another to act for him in any state
and the other does so act, whether he is liable for the tort of the
other is determined by the law of the place of wrong.
• Substance v. procedure
• § 412. Measure Of Damages For Tort
• The measure of damages for a tort is determined by the
law of the place of wrong.
• Comment:
• Rationale. The right to damages in compensation or
punishment for a tort is to be distinguished from the right
of access to the courts and from the procedure provided
to obtain the damages. The creation of a right to have
damages necessarily involves the measurement of that
right in so far as the law can measure it. While the actual
finding of the amount of damages is a function of the jury
or other fact-finding body at the forum, the law that
creates the right determines what items of loss are to be
included in the damages. Since the right is created by the
law of the place of wrong, it is measured by that law.
Milliken v Pratt
(Mass. 1878)