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 OntarioTrip begins and ends in OntarioAccident in NYCourt 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)