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COURT OF APPEALS OF NEW YORK 1969.NY.41294 <>; 249 N.E.2d 394; 24 N.Y.2d 569 decided: April 23, 1969. OLIVER P. TOOKER, JR., AS ADMINISTRATOR OF THE ESTATE OF CATHARINA M. TOOKER, DECEASED, APPELLANT,v.MYER LOPEZ, RESPONDENT Tooker v. Lopez, 30 A.D.2d 115, reversed. Counsel William D. Kiley for appellant. Barry M. Shulman for respondent. Opinion by Judge Keating in which Chief Judge Fuld and Judges Burke and Bergan concur; Chief Judge Fuld and Judge Burke also concur in separate opinions; Judge Breitel dissents and votes to affirm in a separate opinion in which Judges Scileppi and Jasen concur. Author: Keating

Tooker v. Lopez, Opinion by Judge Keating in which Chief Judge Fuld and Judges Burke and Bergan concur; Chief Judge Fuld and Judge Burke also concur in separate opinions; Judge Breitel dissents and votes to affirm in a separate opinion in which Judges Scileppi and Jasen concur.

Author: Keating

 On October 16, 1964, Catharina Tooker, a 20-year-old coed at Michigan State University, was killed when the Japanese sports car in which she was a passenger overturned after the driver had lost control of the vehicle while attempting to pass another car. The accident also took the life of the driver of the vehicle, Marcia Lopez, and seriously injured another passenger, Susan Silk. The two girls were classmates of Catharina Tooker at Michigan State University and lived in the same dormitory. They were en route from the university to Detroit, Michigan, to spend the weekend.

Catharina Tooker and Marcia Lopez were both New York domiciliaries. The automobile which Miss Lopez was driving belonged to her father who resided in New York, where the sports car he had given his daughter was registered and insured.

This action for wrongful death was commenced by Oliver P. Tooker, Jr., the father of Catharina Tooker, as the administrator of her estate. The defendant asserted as an affirmative defense the Michigan "guest statute" (C. L. S., § 257.401 [Stat. Ann. 1960, § 9.2101]) which permits recovery by guests only by showing willful misconduct or gross negligence of the driver. The plaintiff moved to dismiss the affirmative defense on the ground that under the governing choice-of-law rules it was New York law rather than Michigan law which applied. The motion was granted by the Special Term Justice who concluded that: "New York State 'has the greatest concern with the specific issue raised in the litigation' and that New York law should apply." The Appellate Division (Third Department) agreed with "the cogent argument advanced by Special Term" but felt "constrained" by the holding in Dym v. Gordon (16 N.Y.2d 120 [1965]) to apply the Michigan guest statute.

We are presented here with a choice-of-law problem which we have had occasion to consider in several cases since our decision in Babcock v. Jackson (12 N.Y.2d 473 [1963]) rejected the traditional rule which looked invariably to the law of the place of the wrong. Unfortunately, as we recently had occasion to observe, our decisions subsequent to rejection of the lex loci delictus rule "have lacked a precise consistency" (Miller v. Miller, 22 N.Y.2d 12, 15 [1968]; see, also, D. Currie, Comments on Reich v. Purcell, 15 UCLA L. Rev., 595-598). This case gives us the opportunity to resolve those inconsistencies in a class of cases which have been particularly troublesome.

In Babcock v. Jackson (supra) the plaintiff was injured when an automobile in which she was a passenger crashed into a stone wall during a weekend trip with her neighbors to Ontario, Canada. The plaintiff as well as her neighbors, who owned and operated the vehicle, were New York domiciliaries and the car was registered and insured in the State. Upon her return to New York the plaintiff commenced an action to recover for her personal injuries. The Ontario "guest statute", which prohibited suits by guests against negligent hosts, was asserted as a defense.

This court rejected unequivocally the traditional lex loci delictus rule and refused to apply Ontario law. We noted that the traditional rule placed controlling reliance upon one fact which had absolutely no relation to the purpose of the ostensibly conflicting laws and thus resulted in decisions which often frustrated the interests and policies of the State in which the accident had taken place as well as our own State.

We thus observed in the case before us that the purpose of the Ontario guest statute was "to prevent the fraudulent assertion of claims by passengers, in collusion with the drivers, against insurance companies" (Survey of Canadian Legislation, 1 U. Toronto L. J. 358, 366) and that, "quite obviously, the fraudulent claims intended to be prevented by the statute are those asserted against Ontario defendants and their insurance carriers, not New York defendants and their insurance carriers. Whether New York defendants are imposed upon or their insurers defrauded by a New York plaintiff is scarcely a valid legislative concern of Ontario simply because the accident occurred there, any more than if the accident happened in some other jurisdiction." (12 N.Y.2d, supra, p. 483.)

We were careful to distinguish the interest of Ontario in this case from what it would have been, had the issue related to the manner in which the defendant had been driving his car at the time of the accident. "Where the defendant's exercise of due care in the operation of his automobile is in issue, the jurisdiction in which his allegedly wrongful conduct occurred would usually have a predominant, if not exclusive concern. In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place." (12 N.Y.2d, supra, p. 483.)

The issue before us, as Judge Fuld pointed out, was "not whether the defendant offended against a rule of the road prescribed by Ontario for motorists generally or whether he violated some standard of conduct imposed by that jurisdiction, but rather whether the plaintiff, because she was a guest in the defendant's automobile, is barred from recovering damages for a wrong concededly committed." As to that issue we concluded it was New York which had the only interest. "New York's policy of requiring a tort-feasor to compensate his guest for injuries caused by his negligence cannot be doubted * * * and our courts have neither reason nor warrant for departing from that policy simply because the accident, solely affecting New York residents and arising out of the operation of a New York based automobile, happened beyond its borders. Per contra, Ontario has no conceivable interest in denying a remedy to a New York guest against a New York host for injuries suffered in Ontario by reason of conduct tortious under Ontario law." (12 N.Y.2d, supra, p. 482.)

Babcock v. Jackson (supra) was followed by Dym v. Gordon (16 N.Y.2d 120 [1965]). There, the plaintiff and defendant were both New York domciliaries who were taking courses at the University of Colorado during the summer of 1959. The plaintiff and defendant became acquainted at school and on one occasion, while a passenger in a car driven by the defendant, plaintiff was injured when the automobile collided with another vehicle.

Upon her return to New York, the plaintiff commenced an action to recover for her personal injuries. Again, a "guest statute" defense, predicated this time on Colorado law, was asserted. The Colorado statute, less severe in its effect than that of Ontario, permitted a guest to recover upon showing of gross negligence. The standard for recovery was apparently intended to lessen the possibility of fraud by requiring the plaintiff to sustain a heavier burden of proof and also may have represented a policy determination that drivers guilty of such reckless conduct be held fully responsible for their conduct. The assertion of the statute as a defense presented a question similar to that in Babcock v. Jackson (supra).

Judge Burke, speaking for the court, articulated a choice-of-law rule which we have had occasion to apply in numerous cases: "[It] is necessary first to isolate the issue, next to identify the policies embraced in the laws in conflict, and finally to examine the contacts of the respective jurisdictions to ascertain which has a * * * superior interest in having its policy or law applied." (16 N.Y.2d, supra, p. 124.)

In applying the rule to the facts of the case we concluded that the purpose of this guest statute was not only to prevent fraudulent claims against Colorado insurers, but was intended as well to grant injured parties in other cars priority over the "ungrateful guest" in the assets of the negligent driver. Since the case, in fact, involved another vehicle and injured third parties, we concluded that Colorado, unlike Ontario in Babcock v. Jackson (supra), had an interest in the application of its law. Faced with a true conflict of laws, a closely divided court determined that Colorado law ought to govern since the parties had resided in that State for so prolonged a period of time and there, therefore, seemed no unfairness in subjecting them to the law of Colorado.

The decision in Dym v. Gordon, upon which the Appellate Division relied in the instant case, is clearly distinguishable from the facts here. There is here no third-party "non-guest" who was injured and there is no question of denying such a party priority in the assets of the negligent defendant. We cannot, however, in candor rest our decision on this basis in light of a subsequent decision which refused to apply the Ontario guest statute in a case indistinguishable from Dym v. Gordon (supra). (See Macey v. Rozbicki, 18 N.Y.2d 289 [1966].)

The primary point of division in Dym v. Gordon (supra) focused not upon the choice-of-law rule quoted earlier (see dissenting opn. of Fuld, J., 16 N.Y.2d, supra, pp. 129-130), but rather upon the construction placed on the Colorado guest statute which, upon reflection, we conclude was mistaken.

The teleological argument advanced by some (see Cavers, Choice-of-Law Process, p. 298) that the guest statute was intended to assure the priority of injured nonguests in the assets of a negligent host, in addition to the prevention of fraudulent claims, overlooks not only the statutory history but the fact that the statute permits recovery by guests who can establish that the accident was due to the gross negligence of the driver. If the purpose of the statute is to protect the rights of the injured "non-guest", as opposed to the owner or his insurance carrier, we fail to perceive any rational basis for predicating that protection on the degree of negligence which the guest is able to establish. The only justification for discrimination between injured guests which can withstand logical as well as constitutional scrutiny (see Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 508 [1968]; Glona v. American Guar. Co., 391 U.S. 73 [1968]; Levy v. Louisiana, 391 U.S. 68 [1968]) is that the legitimate purpose of the statute -- prevention of fraudulent claims against local insurers or the protection of local automobile owners -- is furthered by increasing the guest's burden of proof. This purpose 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 failure to come to grips with this problem in Macey v. Rozbicki (supra) resulted in a decision which has confused and clouded the choice-of-law process in New York. There the defendants, Mr. and Mrs. Vincent Rozbicki, who were New York domiciliaries, were spending the summer in their home in Ontario. They invited Mrs. Rozbicki's sister, Miss Jean Macey, to spend a 10-day vacation with them. Miss Macey was injured when an automobile, owned by her brother-in-law and driven by her sister, collided with another vehicle.

The court correctly concluded that New York law governed, but in so doing ignored the rationale of Babcock and Dym in order to avoid a reconsideration of the construction placed on the guest statute. Thus the court wrote: "In the present case the relationship of two sisters living permanently in New York was not affected or changed by their temporary meeting together in Canada for a short visit there, especially since the arrangements for that visit had undoubtedly been made in New York State. Every fact in this case was New York related, save only the not particularly significant one that the particular trip on the day of the accident was between two points in Canada." (18 N.Y.2d, supra, p. 292.)

Substituted for a rational choice-of-law rule was a method of decision based on contact counting -- a method open to the same criticism of unreasonableness as the earlier lex loci delictus rule. This analysis has been rejected in subsequent opinions. (Matter of Crichton, 20 N.Y.2d 124, 133-134 [1967], adopting the approach of the concurring opinion in Macey v. Rozbicki which adhered to the Babcock rule; Matter of Clark, 21 N.Y.2d 478 [1968]; ...

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