The Court must look to the choice of law rules of its forum state in diversity actions. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). New York applies "interest analysis" to tort choice of law problems. Arochem Int'l, Inc. v. Buirkle, 968 F.2d 266, 1992 U.S. App. LEXIS 14996, **11 (2d Cir. June 30, 1992). Under the choice of law scenario involving domiciliaries of different states with an accident occurring in a third state,
. . . 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 multi-state system or producing great uncertainty for litigants. Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 70, 286 N.E.2d 454 (1972).
In Gray v. Busch Entertainment Corp., 886 F.2d 14 (2d Cir. 1989) (per curiam), the Second Circuit applied interest analysis to a set of facts extremely similar to the case at bar. Gray involved a New York appellant who suffered injuries at a Virginia amusement park owned by an appellee most likely domiciled in Missouri.
Id. at 15. Gray held that the district court's decision to apply Virginia's contributory negligence defense was "entirely appropriate" because "when the domiciles of the parties differ, the location of the injury determines the governing substantive law absent special circumstances." Id.
The reasoning of Gray applies equally here. The domiciles of the Connaughtons and Amtrak differ. The accident occurred in a third state which the Connaughtons purposely visited in order to see family. Moreover, like the appellants in Gray, the Connaughtons have failed to meet the "heavy burden" of showing that application of the Virginia defense should be displaced for public interest or policy reasons. Gray, 886 F.2d at 16. Indeed, Gray determined that the potential bar to recovery provided under the Virginia defense is not a "special circumstance" warranting departure from the general tort choice of law principle of lex loci delicti. Id.; see also Lund's Inc. v. Chemical Bank, 870 F.2d 840, 845 (2d Cir. 1989) ("lex loci delicti remains the general rule in tort cases to be displaced only in extraordinary circumstances," quoting Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 405 N.Y.S.2d 441, 442, 376 N.E.2d 914 (1978) (per curiam)).
Interest analysis also requires district courts to examine whether the conflicting Jurisdictions' rules are loss-distributing or conduct regulating. See e.g., Arochem Int'l, 968 F.2d 266, 1992 U.S. App. LEXIS 14996, **11-**13. This loss-distributing/conduct regulating distinction was announced by the New York State Court of Appeals in Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985), and remains unclear. See e.g., Calla v. Shulsky, 148 A.D.2d 60, 543 N.Y.S.2d 666, 669 (1st Dept. 1990). The Court concludes that Gray, which was decided four years after Schultz, inferentially holds that the loss-distributing/conduct regulating distinction does not require application of the New York rule.
In conclusion, Gray dictates that the lex loci delicti of Virginia must apply to the case at bar. The defendant's motion is hereby GRANTED.
Dated: Brooklyn, New York
September 16, 1992
John R. Bartels
UNITED STATES DISTRICT JUDGE