The law of the place of injury applies to an accident involving a foreign domiciliary unless displacing that rule advances substantive law purposes without impairing the multi-state system.
A New York resident driving in Ontario killed an Ontario domiciliary in a motor vehicle accident. The estate of the deceased passenger brought a wrongful death action in New York, and the defendant estate pleaded an Ontario guest statute as a defense. The court must determine whether to apply the law of the place of injury or displace it to advance substantive law purposes. Because the passenger was domiciled in the jurisdiction where the accident occurred, the court applies the law of the place of injury. Displacing this rule is not justified here, as doing so would fail to advance New York's substantive interests and would impair the multi-state system by encouraging forum shopping.
v.
Irene Kuehner, as Administratrix of the Estate of Arthur Kuehner
Lead Opinion
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— thab 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, looker 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 Ontarió-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 Mottle 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 Tocker, 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. Lopes, 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 Com. 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 prbgeny 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 íaw. To quote a^ain from the concurring[*128] opinion in Tooker (p. 584), “ How that these values and policies have been revealed, we ma^ 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. Hormally, 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 multistate 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 Hew 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).[1] 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’^ order should be reversed, that of Special Term reinstated, without costs, and the questions certified answered in the negative.
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 átate where the accident occurred ”.
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].)
Concurrence
(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 Fued in his concurring opinion in the Looker case (Looker v. Lopez, 24 N Y 2d 569, 583, at p. 584) look 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 Looker case (24[*131] N Y 2d 569, supra), 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 hot 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 forxthat 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 td establish that the relationship to this State was suffi[*132] cient 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.
Dissent
(dissenting). The doctrine of lex .loci delictus, whatever its other shortcomings mgy 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” br “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.
[*134] Judges Burke, Scileppi a^d Gibson concur with Chief Judge Fule; thidge Breitel concurs in a separate opinion in which Judge Jasen cojiéurs; Judge Bergan dissents -and votes to'affirm in an opinion.
Orders reversed, éíc.