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March 6, 1981

Richard A. PATTON, Administrator of the Estate of Carl W. Patton, Deceased, and Richard and Betty Patton, in Their Own Right, Plaintiffs,
Charles CARNRIKE and Susan Carnrike, a/k/a Marlene Carnrike, d/b/a Carnrike's Market, Defendants

The opinion of the court was delivered by: MACMAHON


Plaintiffs seek damages, pursuant to New York's Dram Shop Act, *fn1" for injuries allegedly sustained by their decedent son in a single vehicle highway accident. Defendants have asserted an affirmative defense and counterclaim, alleging plaintiffs' failure to exercise proper parental supervision of their son's conduct. Plaintiffs now move to strike this defense and counterclaim, arguing that lack of parental supervision was not cognizable as a defense or as a counterclaim under the applicable law of New York. Defendants contend, however, that Pennsylvania law applies and that Pennsylvania does recognize such a defense and counterclaim.

 Having carefully negotiated the labyrinth of New York's choice of law rules, we find that New York governs our disposition of this issue and requires us to grant the motion to strike the defense and counterclaim.


 The parties have adopted the same set of essential facts for the purposes of this motion. These facts are also consistent with those set up in defendants' answer. *fn2"

 Decedent Carl W. Patton was a seventeen-year old who resided with his parents in Pennsylvania. William Bryan was a companion of Patton's, who, at the time of the accident, was also a minor and a resident of Pennsylvania. On the evening of September 10, 1977, Bryan borrowed his sister's car and, accompanied by Patton, drove to Waverly, New York, which is situated just north of the border between the two states.

 In Waverly, Bryan allegedly purchased two six-packs of beer at defendants' store. Although New York law forbids the sale of alcoholic beverages, including beer, to persons under the age of eighteen, *fn3" no effort was allegedly made to determine Bryan's age before he was permitted to purchase the beer.

 It is further alleged that both youths began to drink the beer as Bryan drove the car along the highway. Bryan allegedly became intoxicated and lost control of the car, which struck an embankment and overturned near East Smithfield, Pennsylvania. Patton is claimed to have incurred fatal injuries in the accident.


 Jurisdiction in this case is grounded on diversity of citizenship. Therefore, the choice of law rules of the forum state, New York, govern this action. *fn4" Our consideration of New York's choice of law rule, however, is contingent on the existence of an actual conflict *fn5" between the law of the states which have contact with the events at issue in this litigation.

 Pennsylvania has long held that in tort actions the contributory negligence of a minor's parents for their failure to supervise the child's conduct is a question of fact for the jury. *fn6" New York, on the other hand, has recently reaffirmed that it will not recognize a tort or defense grounded in parents' failure to supervise children. *fn7" Therefore, we find that there is a clear conflict between the law of Pennsylvania and New York concerning the availability to defendants of this defense and counterclaim. Having found that New York's choice of law rules are implicated, we must now identify what those rules are and which laws those rules would apply to resolve this conflict.

 In Babcock v. Jackson, *fn8" the New York Court of Appeals held that lex loci delicti would no longer be the invariable rule in tort actions. Rather, lex loci will be displaced by the law of the state which, because of its relationship or contact with the occurrence or parties, has the greatest concern with the specific issue raised in the litigation. *fn9"

 Recent pronouncements, however, establish that lex loci remains the general rule in tort cases, to be displaced only in "extraordinary circumstances" when doing so would "advance the relevant substantive law purposes of the jurisdiction involved." *fn10" Judge Breitel has suggested that lex loci is 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." *fn11" The full court signalled its approval of the latter test when it noted in a later decision that the site of an airplane crash is "most often fortuitous." *fn12"

 We believe that this action, which arises under the New York Dram Shop Act and which involves an interstate automobile trip, is an extraordinary situation necessitating the displacement of lex loci by the interests analysis formulated in Babcock and its progeny. *fn13" Plaintiffs' claim under the New York Dram Shop Act is grounded on an unlawful sale of liquor that caused or contributed to the intoxication of Bryan, who, in turn, allegedly injured decedent by driving while intoxicated. Although these factors connected with the crash site will be relevant, the alleged unlawful sale of alcohol in New York is, under plaintiffs' theory of liability, the most "significant even(t) in this multi-state trip." *fn14" Assuming that Bryan was intoxicated while driving, the actual site of the crash was largely "fortuitous." We thus conclude ...

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