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April 5, 1990


The opinion of the court was delivered by: Bartels, District Judge.



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.



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 (1976).

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.

This determination may be changed if extraordinary circumstances, i.e. the place of the wrong is merely fortuitous or New York residents require protection from unfair and anachronistic treatment, warrant application of another jurisdiction's law. Babcock v. Jackson, 12 N.Y.2d 473, 240 N YS.2d 743, 748, 191 N.E.2d 279, 282 (1963); Zangiacomi, 714 F. Supp. at 662.

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 fortuitous.

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 New ...

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