smooth working of the multi-state system or producing great uncertainty for litigants.'" Schultz v. Boy Scouts of America Inc., 65 N.Y.2d 189, 201, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985) (quoting Neumeier, 31 N.Y.2d at 128).
Application of this third test is illustrated in Schultz, where New Jersey domiciliaries alleged that they were injured in New York by a charitable organization domiciled in Ohio. Plaintiffs argued for the application of New York law, the lex loci delicti. Defendant sought to apply New Jersey law (which provides charitable groups with immunity to certain tort actions) on the ground that New Jersey had an interest in forcing plaintiffs, as domiciliaries, to accept the burdens as well as the benefits of its loss-distribution rules. The New York Court of Appeals held that this substantive law interest of New Jersey's outweighed the happenstance that the injury occurred in the State of New York, which had no substantive interest in the outcome; accordingly, New Jersey law applied.
In the case at hand, while defendant argues for application of the lex loci delicti, the Court must also consider the substantive law purposes of Virginia's contributory negligence law and New York's comparative negligence law. See Murphy v. Acme Markets, Inc., 650 F. Supp. 51, 54 (E.D.N.Y. 1986) (McLaughlin, J.). If the purpose of these laws relates to loss allocation, Virginia has no substantive law interest in enforcing its rule when two non-domiciliaries are involved. Id. at 54. On the other hand, New York has an obvious interest in enforcing its determination that its own domiciliary whose own negligence is only partially responsible for her injuries should not go uncompensated.
Indeed, the strong New York policy favoring partial compensation of its domiciliaries in such circumstances has led the New York Court of Appeals to decline to apply a Massachusetts statutory limit on damages for a wrongful death suit, Kilberg v. Northeast Airlines Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), a Connecticut law permitting a wife to sue her husband for negligently inflicted injuries, Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597 (1936), and a British law upholding a contractual provision releasing a shipper from liability for its own negligence, F.A. Straus & Co. v. Canadian Pac. Ry. Co., 254 N.Y. 407, 173 N.E. 564 (1930). Since, as Judge McLaughlin noted in Murphy, application of New York law in such circumstances will neither impair multi-state workings nor produce great uncertainty for litigants, the teachings of Schultz would seem to favor application of New York's comparative negligence law to this case. See Murphy, 650 F. Supp. at 54.
Defendant advances two main arguments against this result. First, it argues that Virginia's all-or-nothing contributory negligence rule is more than simply a rule of loss allocation and that, in addition, it serves to regulate the conduct of persons within Virginia's domain. See Babcock v. Jackson, 12 N.Y.2d 473, 483-84, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963). The Court is not persuaded, however, that this interest is significantly more advanced by applying Virginia law rather than New York law to this case. Both contributory negligence and comparative negligence rules significantly encourage plaintiffs to exercise due care; the primary difference is in how loss will be allocated after the tort occurs. See Murphy, 650 F. Supp. at 53.
Defendant's other argument is that the Second Circuit's per curiam decision in Gray v. Busch Entertainment Corp., 886 F.2d 14 (2d Cir. 1989) (per curiam), mandates application of the lex loci delicti in these circumstances. In Gray, the Court applied the lex loci delicti to a New York domiciliary who was injured in Busch Gardens, Virginia. But while at least one court has speculated that the defendant (Busch Entertainment Corp. d/b/a/ Busch Gardens) was a domiciliary of Missouri, see Connaughton v. National R.R. Passenger Corp., 809 F. Supp. 1, 2 n.1 (E.D.N.Y. 1992), nothing on the face of the opinion so indicates. Furthermore, the one paragraph in Gray addressing the choice-of-law issues simply holds that the appellant has neither demonstrated "special circumstances" warranting departure from the normal rule of lex loci delicti, nor met the "heavy burden" necessary to invoke the "public policy" exception to the Neumeier rules, see Schultz, 65 N.Y.2d at 202, a different issue than the one here presented.
Accordingly, New York law will be applied in the instant case. As the case has been reassigned to the Honorable Barbara S. Jones, U.S.D.J., effective March 1, 1997, the parties are directed to jointly contact Judge Jones to schedule a trial date.
JED S. RAKOFF, U.S.D.J.
Dated: White Plains, New York
February 25, 1997