The opinion of the court was delivered by: Bartels, District Judge.
MEMORANDUM-DECISION AND ORDER
Suliao Zhou Huang, ("Plaintiff"), a New York domiciliary and
administratrix of the
estate of her son, Rodger Huang ("Huang"), sues for her son's
conscious pain and suffering and wrongful death arising out of
two causes of action based upon an unfortunate incident which
occurred at the New Jersey home of Frank and Janny Lee (the
"Defendants"). The event occurred sometime between the evening
of December 30, 1987, and the early morning hours of December
31, 1987. Huang had accepted an invitation from his uncle,
Frank Lee, to spend the night at the Lee's home in Closter,
New Jersey. Due to the crowded conditions, Huang, along with
other guests, slept on the floor, near the heater, in the
living room. On the morning of the 31st, the Defendants awoke
to a malodorous smell and discovered Huang, unconscious, lying
on the living room floor. The local police were summoned and
pronounced Huang dead. According to the autopsy findings,
Huang succumbed as a result of carbon monoxide intoxication.
At the time of his death, Huang, a college student, lived in
New York with his parents.
Defendants move for a pre-trial ruling regarding two
choice-of-law questions. Specifically, the Court is asked to
determine, in this multistate tort action, whether (a) New
York or New Jersey standard of care governs the issue of
liability where a guest from New York is injured at the home
of a New Jersey domiciliary; and (b) New York or New Jersey
law determines the damages permissible in a wrongful death
action brought by a New York domiciliary on behalf of the
estate of her child.
A. LIABILITY FOR PAIN AND SUFFERING
Different standards of care have been adopted by New York
and New Jersey with respect to the duty of care an occupier of
land owes to third persons coming thereon. New Jersey
continues to adhere to the traditional common law view that
the duty is determined according to the status of such third
persons, i.e., invitee, licensee, or trespasser. Snyder v. I.
Jay Realty Co., 30 N.J. 303, 311-312, 153 A.2d 1 (1959).*fn1
New York, on the other hand, abandoned this approach and
instead adopted a rule whereby the land owner's conduct is
governed by a single standard of reasonable care.*fn2 Basso v.
Miller, 40 N.Y.2d 233, 240, 386 N.Y.S.2d 564, 352 N.E.2d 868
Historically, New York*fn3 resolved choice-of-law conflicts
in multistate tort actions by applying the law of the place of
the wrong; in other words, the immutable principle of lex loci
delicti governed. This remains the general rule today unless
extraordinary circumstances exist. Zangiacomi v. Saunders,
714 F. Supp. 658, 662 (S.D.N.Y. 1989); Kohn v. United States,
591 F. Supp. 568, 572 (E.D.N.Y. 1984), aff'd, 760 F.2d 253 (2d Cir.
1985); Cooperman v. Sunmark Industries Division of Sun Oil Co.
of Pa., 529 F. Supp. 365, 368 (S.D.N.Y. 1981); Cousins v.
Instrument Flyers, Inc., 44 N.Y.2d 698, 405 N.Y.S.2d 441, 442,
376 N.E.2d 914, 915 (1978); Rakaric v. Croation Cultural Club,
76 A.D.2d 619, 430 N.Y.S.2d 829, 835 (2d Dept. 1980). New
Jersey law would apply under lex loci delicti since Huang's
injuries occurred at the Defendants' New Jersey home.
To determine whether or not the situs of the injury was
fortuitous, New York courts have "[t]raditionally . . .
distinguished fixed location from transient (fortuitous) cases
. . . and in fixed cases, they often place greater emphasis on
the law of the situs of the tort." Zangiacomi, 714 F. Supp. at
662 (citations omitted). This is not a case in which the place
of the wrong is purely fortuitous. Unlike the airplane or
automobile passenger, whose relationship with the state in
which the injury occurs may be very tenuous, Huang, sleeping
bag in tow, crossed the Hudson River, into New Jersey, for the
specific purpose of spending the night at the Defendants' home.
He had a very direct and substantial nexus with New Jersey.
Factual similarities appear in this case and Zangiacomi (New
York resident injured while working in Connecticut —
Connecticut law applied to determine homeowner's liability),
and Gray v. Busch Entertainment Corp., 886 F.2d 14 (2d Cir.
1989) (vacationing New York resident injured at amusement park
in Virginia — Virginia contributory negligence standard
applied), wherein the court held that the injured party's
presence in the state at the time of the accident was not
Nor is the Court presented with a scenario in which a New
York resident needs protection from unfair or anachronistic
treatment. Zangiacomi, 714 F. Supp. at 662 (citing Babcock, 12
N Y2d 473, 240 N.Y.S.2d at 748, 191 N.E.2d at 282; Gray, 886
F.2d at 16.) In Gray, the Second Circuit found that applying
Virginia's law to a New York resident-plaintiff was neither
unfair nor anachronistic, despite the fact that under
Virginia's contributory negligence rule*fn4 the plaintiff
might be denied recovery. While the standards of care differ in
this case, and New York's rule may arguably be more Plaintiff
oriented, application of New Jersey's law neither bars the
cause of action nor does it preordain a verdict in favor of the
Defendants. Consequently, the result would not be unfair or
anachronistic. Zangiacomi, 714 F. Supp. at 663. Since the place
of the injury was not fortuitous and the application of New
Jersey's law would be neither unfair nor anachronistic, it
would be unjustified to depart from the rule of lex loci and
impose New York's standard of care.
Realizing that the indiscriminate application of lex loci
could result in harsh and illogical results New York adopted
interest analysis as an alternative means to resolve
choice-of-law problems. Babcock, 12 N.Y.2d 473, 240 N.Y.S.2d
743, 191 N.E.2d 279. Under interest analysis "controlling
effect [is given] to the law of the jurisdiction which, because
of its relationship or contact with the occurrence or the
parties has the greatest concern with the specific issue raised
in the litigation." Id. 240 N.Y.S.2d at 749, 191 N.E.2d at 283.
Assuming this Court found that extraordinary circumstances were
present and applied interest analysis, it would inexorably
reach the same conclusion — New Jersey law would govern.
While it has not always been easy to determine which
jurisdiction has the greatest interest, certain principles
have been established which enable the Court to reach a
conclusion. For instance, in tort cases, "the significant
contacts are, almost exclusively, the parties' domiciles and
the locus of the tort." Schultz v. Boy Scouts of America, Inc.,
65 N.Y.2d 189, 195, 491 N.Y.S.2d 90, 95, 480 N.E.2d 679, 684
(1985). Furthermore, "the relative interests of the domicile
and the locus jurisdictions in having their laws apply will
depend on the particular tort issue in conflict" . . . and when
the rules involve standards of conduct*fn5 "the law of the
place of the tort 'will usually have a predominant, if not
exclusive concern'". Id. (emphasis added) (quoting Babcock, 12
N Y2d at 483, 240 N.Y.S.2d at 750, 191 N.E.2d at 284); Murphy
v. Acme Markets, Inc., 650 F. Supp. 51, 53 (E.D.N.Y. 1986);
Cameron v. G & H
Steel Serv. Inc., 494 F. Supp. 171, 173 (E.D.N.Y. 1980). See
generally Restatement (Second) of Conflict of Laws § 145
comment d, at 417-418 (1971) ("subject to only rare exceptions,
the local law of the state where the conduct and injury
occurred will be applied to determine whether the actor
satisfied minimum standards of acceptable conduct").
This case presents the paradigm situation for application of
New Jersey's law since (1) New Jersey is the situs of the
alleged wrongful acts; and (2) New Jersey has the predominant
interest in regulating the conduct of its property owners, and
its law should govern where the issue is the liability of a