Schultz v Boy Scouts of America
(NY 1985)
• “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.”
• “The first two reasons share common
weaknesses. First, in the abstract, neither
reason necessarily requires application of the
locus jurisdiction's law, but rather invariably
mandates application of the law of the
jurisdiction that would either allow recovery
or allow the greater recovery. They are subject
to criticism, therefore, as being biased in favor
of recovery.”
• “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.”
Kell v. Henderson (N.Y. Sup. Ct.
1965)
Residents of Ontario
Trip begins and ends in Ontario
Accident in NY
Court applied NY law, not Ontario
guest statute
“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’”
“unprovided-for” cases
• Arizonan and Californian get in accident in
Arizona
• Californian dies
• Arizonan sues Californian’s estate
• AZ has no survivorship of actions
• Cal does
•
•
•
•
Ontario guest riding in NYer’s car
accident in Ontario
Ontario has guest statute
NY doesn’t
unprovided-for case:
P’s domicile’s law benefits D (by
prohibiting action)
D’s domicile’s law benefits P (by allowing
action)
wrongdoing is in P’s domicile
Erwin v. Thomas
(Or. 1973)
• “Washington has decided that the rights of a
married woman whose husband is injured are
not sufficiently important to cause the
negligent defendant who is responsible for the
injury to pay the wife for her loss. It has
weighed the matter in favor of protection of
defendants. No Washington defendant is
going to have to respond for damages in the
present case, since the defendant is an
Oregonian.”
• “On the other hand, what is Oregon's
interest? Oregon, obviously, is protective of
the rights of married women and believes that
they should be allowed to recover for
negligently inflicted loss of consortium.
However, it is stretching the imagination more
than a trifle to conceive that the Oregon
Legislature was concerned about the rights of
all the nonresident married women in the
nation whose husbands would be injured
outside of the state of Oregon.”
• Casey v Mason
• Ore wife brings loss of consortium action
against Wash D for accident in Wash
• Wash law applied
true conflicts
Lilienthal v Kaufman (Ore. 1964)
Are the choice-of-law principles of conflict of laws so
superior that they overcome this principle of Oregon
law? To answer this question we must determine,
upon some basis, whether the interests of Oregon
are so basic and important that we should not apply
California law despite its several intimate
connections with the transaction. The traditional
method used by this court and most others is
framed in the terminology of ‘public policy.’ The
court decides whether or not the public policy of the
forum is so strong that the law of the forum must
prevail although another jurisdiction, with different
laws, has more and closer contacts with the
transaction.
We have, then, two jurisdictions, each with
several close connections with the
transaction, and each with a substantial
interest, which will be served or thwarted,
depending upon which law is applied. The
interests of neither jurisdiction are clearly
more important than those of the other. We
are of the opinion that in such a case the
public policy of Oregon should prevail and the
law of Oregon should be applied; we should
apply that choice-of-law rule which will
‘advance the policies or interests of’ Oregon.
• Concurrence
• To distinguish the Olshen case it would be
necessary to assume that although the
legislature intended to protect the interest of
the spendthrift, his family and the county
when local creditors were harmed, the same
protection was not intended where the
transaction adversely affected foreign
creditors. I see no basis for making that
assumption. There is no reason to believe that
our legislature intended to protect California
creditors to a greater extent than our own.
Bernkrant v Fowler (Cal. 1961)