traditional choice-of-law approach
for torts
law of the place of the harm
Alabama Great Southern RR v.
Carroll
(Ala. 1892)
• 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.
• A, broadcasting in state X, slanders B. B is well
and favorably known in state Y and the
broadcast is heard there by many people
conversant with B's good repute. The place of
wrong is Y.
• 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
• 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
liability-creating 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.
• D in New York employs X to operate his truck in
state Ontario.
• In the course of the day's driving, X drives several
miles out of his way on a personal errand, during
which time he negligently leaves the truck
insecurely parked on a hill.
• The truck starts down hill and after crossing the
state line from Ontario into Quebec, crashes into
P's automobile and demolishes it.
• Under the laws of New York and Ontario, X was
on a frolic of his own and outside the scope of his
employment; under the law of Quebec, X was
acting within the scope of his employment.
• Is D liable to P (do you use Quebec law)?
• § 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.
• Note: In order that the law of the state of
wrong may apply to create liability against the
absentee defendant, he must in some way have
submitted himself to the law of that state. It is
sufficient if he has authorized or permitted
another to act for him in the state in which the
other's conduct occurs or where it takes effect.
• 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?
• A court in Alabama is adjudicating a tort
occurring in Mississippi
• An Alabama statute states that “no court of
this state shall provide damages in tort in
excess of $100,000.”
• Does the statute apply?
• 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….
Milliken v Pratt
(Mass. 1878)
Assume that under Maine law
married women may not act as
sureties for their husband and
under Mass law they may.
• Offer is sent from Maine to Massachusetts.
• Acceptance is written up in Massachusetts
and put into a mailbox there.
• After mailing, the offeror telephones the
offeree to withdraw.
• Under the common law, is the withdrawal
effective?
• Assume that under Mass law, the contract was
consummated when acted upon by the Ps in
Maine
• But under Maine law the contact was
consummated in Mass when guarantee was
sent
§ 311. Place Of Contracting
• The law of the forum decides as a preliminary
question by the law of which state questions
arising concerning the formation of a contract
are to be determined, and this state is, in the
Restatement of this Subject, called the "place
of contracting."
• A is exposed to a harmful chemical in Mass
• He learns about it in Maine where he worries
excessively
• The physical consequences manifest
themselves in New Hampshire.
• Under law of Maine, fear of exposure is a
legally cognizable harm, under law of New
Hampshire it is not.
• Case is adjudicated before a court in New
Hampshire
• May A receive damages for fear of exposure?