novelty of plaintiffs' claims, the laws of New York, Virginia, and
California are virtually certain to conflict.
Substantial weight must be accorded the location of the tort under New
York's choice of law rules and each state's fundamental interest in the
physical safety of citizens and travelers within its geographical
boundaries. Application of Virginia and California law to the Virginia
and California shootings is mandated.
Transfer of these two cases to the states where the shootings occurred
is desirable. The applicable state law is highly unsettled. Interpreting
it will require a subtle appreciation of state tort law developments and
nuances unique to Virginia and California. This task is best carried out
by district courts sitting in those states. In addition, local juries are
probably the best arbiters of the unreasonableness of the risk posed by
acts with local consequences. The interests of justice will best be
served by transfer of Costa v. Accu-tek et al. and Johnstone v. Accu-tek
et al. to Virginia and California respectively.
II. FACTS AND BACKGROUND PROCEDURAL
A. Procedural History
Katina Johnstone was one of two plaintiffs who initiated this suit in
January 1995. In April 1996, her suit was consolidated with a number of
other similar ones, including one filed by Veronica Costa. The complex
and novel issues presented have necessitated development of a detailed
and lengthy factual record. Defendants' earlier motions for summary
judgment on plaintiffs' negligence claims were denied with leave to
renew, on the ground that discovery was not yet complete and the issues
not fully briefed. See Hamilton v. Accu-tek, 935 F. Supp. 1307, 1315,
1330 (E.D.N.Y. 1996).
With discovery nearing completion, defendants again moved for summary
judgement in November 1998, on the ground that no cause of action
existed. Oral argument was heard on December 17, 1998. The motion was
denied. See Order December 18, 1998.
A series of motions to dismiss based upon lack of personal
jurisdiction were denied, relying on the theory explicated in In re DES
Cases, 789 F. Supp. 552 (E.D.N.Y. 1992). See Hamilton v. Accu-Tek,
32 F. Supp.2d 47 (E.D.N.Y. 1998) (affirming the Report and Recommendation
of the Magistrate Judge on jurisdiction).
Having determined that Virginia law applied to the claims arising out
of the Virginia shooting of Ms. Costa's son, and in serious doubt about
the applicability of New York law to Ms. Johnstone's California-based
claims, the court severed Costa v. Accu-tek et al. and Johnstone v.
Accu-tek et al. from the cases set for immediate trial. See Order dated
December 22, 1998. Decision on the issue of transfer was reserved pending
final resolution of the choice of law issue. See Order dated December
B. Out-of-State Shootings
1. Christopher Malachi
Christopher Malachi was shot and killed in Portsmouth, Virginia on
April 19, 1994. He was twenty-three years old. Malachi was a New York
domiciliary planning to return to New York to live. See Hamilton v.
Accu-Tek, 13 F. Supp.2d 366 (E.D.N Y 1998). At the time of his murder, he
had resided in Virginia as both college student and house painter for
The Portsmouth police questioned a number of witnesses with possible
connections to the gun used in the Malachi shooting, but the gun itself
was never recovered. Expended bullets and casings were collected from the
crime scene and were analyzed by the Virginia Department of General
Services Division of Forensic Science.
2. David Johnstone
David Johnstone was a New York resident and domiciliary. He was shot
while visiting San Francisco on July 29, 1992, and died one month later
in New York. The shooter, a 16-year old resident of California,
ultimately pled guilty to murder. The San Francisco Police Department
recovered the gun used to shoot Mr. Johnstone, a Smith & Wesson .38
caliber revolver. It had been registered in California in 1988 and had
been stolen from the Mann County home of its lawful owner two weeks
before the shooting.
A. Choice of Law
A choice of law question is presented when a dispute implicates the
interests of two or more states and application of each state's law would
be consistent with the Full Faith and Credit and Due Process Clauses of
the Constitution. See Cooney v. Osgood Machinery, 81 N.Y.2d 66, 70-71,
612 N.E.2d 277, 279, 595 N.Y.S.2d 919, 921 (1993); Diehl v. Ogorewac,
836 F. Supp. 88, 91 (E.D.N.Y. 1993). These modest constitutional
requirements are met if each state whose law is sought to be applied has
"significant contacts or significant aggregation of contacts creating
state interests, such that choice of its law is neither arbitrary nor
fundamentally unfair." Allstate Ins. Co. v. Hague, 449 U.S. 302, 313, 101
S.Ct. 633, 66 L.Ed.2d 521 (1981). See also Phillips Petroleum Co. V.
Shutts, 472 U.S. 797, 818-23, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985).
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188
(1938), requires a federal court sitting in diversity to apply the choice
of law rules of the forum state. See Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Curley
v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998).
1. New York's Choice of Law Rules
More than a third of a century ago, a revolution in choice of law
standards was largely started by the seminal case of Babcock v. Jackson,
12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963) (Fuld, J.). See,
e.g., Symeon C. Symeonides et al., Conflict of Laws: American,
Comparative, International 286-88 (1998) (methodological camps still
existing in 1997, analyzed state-by-state); Maurice Rosenberg et al.,
Conflict of Laws (Teacher's Manual) 86 (10th ed. 1996) ("Babcock is
widely regarded as the landmark case that began the change in approaches
to choice of law by United States courts."); Harold L. Korn, The Choice
of Law Revolution: A Critique, 83 Colum. L.Rev. 772, 827 (1983). The New
York Court of Appeals adopted an "interest analysis" for torts
conflicts, departing from the American standard application of lex loci
delicti, or the law of the place of the wrong. Babcock involved two New
York domiciliaries and stemmed from a car crash in Ontario, Canada. New
York law afforded the plaintiff passenger a remedy, but Ontario had a
"guest statute" precluding her recovery from the defendant driver. The
court held that "[j]ustice, fairness and, the best practical result, may
best be achieved by giving controlling effect 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." Babcock, 12 N.Y.2d at 481, 191 N.E.2d at
283, 240 N.Y.S.2d at 749 (internal quotation marks and citation
omitted). It applied New York law, reasoning that New York's interest in
a case involving New York parties, a New York automobile, and trip
starting from and due to end in New York was certainly greater than
Ontario's completely accidental and "at best minimal" interest in the
matter. Id. at 482, 191 N.E.2d at 284, 240 N.Y.S.2d at 750.
In a series of subsequent cases the Court of Appeals refined the
Babcock court's "grouping of contacts" approach, fashioning an analysis
which gives the greatest weight to those contacts which are relevant to
the policies animating the particular rules in conflict. See Schultz v.
Boy Scouts of America Inc., 65 N.Y.2d 189, 196-97, 480 N.E.2d 679,
683-84, 491 N.Y.S.2d 90, 94-95 (1985). "`Under this formulation, the
significant contacts are, almost exclusively, the parties' domiciles and
the locus of the tort.'" AroChem Int'l v. Buirkle, 968 F.2d 266, 270 (2d
Cir. 1992) (quoting Schultz, 65 N.Y.2d at 197, 480 N.E.2d at 684, 491
N.Y.S.2d at 95).
In connection with this development, New York courts have recognized a
conceptual distinction between conduct-regulating and loss-allocating
laws. See, e.g., Padula v. Lilarn Properties Corp., 84 N Y2d519, 521,
644 N.E.2d 1001, 1002-03, 620 N.Y.S.2d 310, 311-12 (1994) (choice of law
analysis differs depending on whether the purpose of the laws at issue is
to regulate conduct or allocate loss); Cooney v. Osgood Machinery, Inc.,
81 N.Y.2d 66, 72, 612 N.E.2d 277, 280, 595 N.Y.S.2d 919, 922 (1993) ("An
immediate distinction was drawn between laws that regulate primary
conduct (such as standards of care) and those that allocate losses after
the tort occurs (such as vicarious liability rules)."); AroChem, 968 F.2d
at 270 (same).
Loss-allocating rules are "those which prohibit, assign, or limit
liability after a tort occurs, such as charitable immunity statutes,
guest statutes, wrongful death statutes, vicarious liability statutes,
and contribution rules." Padula 84 N.Y.2d at 521, 644 N.E.2d at 1003, 620
N.Y.S.2d at 312 (citations omitted). Under New York's choice of law
rules, the interest of the locus jurisdiction in having its
loss-allocation rule applied is deemed to be minimal. See Schultz,
65 N.Y.2d 189, 198, 480 N.E.2d 679, 685, 491 N.Y.S.2d 90, 96. Conflicts
between loss-allocation rules are analyzed under the rubric first set
forth in Neumeier v. Kuehner 31 N.Y.2d 121, 286 N.E.2d 454, 335 N.Y.S.2d 64
(1972) (Fuld, C.J.), in the context of guest statutes and later extended
to all loss-allocation rules. See Schultz, 65 N.Y.2d at 198, 480 N.E.2d
at 686, 491 N.Y.S.2d at 97 (finding "no logical basis for distinguishing
guest statutes from other loss-distributing rules"). The analytical
framework is as follows:
1. When the parties are domiciled in the same state, the law of that
2. When the conduct occurs in the state of defendant's domicile, and
he would not be liable under that state's laws, he should not be held
liable under the tort law of the plaintiffs domicile. Conversely, when a
plaintiff is injured in his own domicile, and the law of that state would
permit him to recover, the defendant should not be allowed to interpose
his own state's law.
3. When the parties are domiciled in different states, "`[n]ormally
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 multistate system or
producing great uncertainty for litigants.'" Neumeier, 31 N.Y.2d at 128,
286 N.E.2d at 458, 335 N.Y.S.2d at 70 (quoting Tooker v. Lopez,
24 N.Y.2d 569, 585, 249 N.E.2d 394, 404, 301 N.Y.S.2d 519, 533 (1969)
(Fuld, C.J., concurring)). See also, e.g., Symeonides et al. supra, at
270-79 (table and analysis of Neumeier rules).
Conduct-regulating rules are those which "have the prophylactic effect
of governing conduct to prevent injuries from occurring." Padula, 84
N.Y.2d at 522, 644 N.E.2d at 1002, 620 N.Y.S.2d at 311. When such rules
conflict, the law of the place of the tort governs. See, e.g. id.;
Cooney, 81 N.Y.2d at 74, 612 N.E.2d at
282, 595 N.Y.S.2d at 924 (where conduct regulating is at issue "the
traditional rule of lex loci delicti almost invariably obtains");
Schultz, 65 N.Y.2d at 198, 480 N.E.2d at 684-85, 491 N.Y.S.2d at 95-96.
See also, e.g., Symeonides et al, supra, at 279-282 (issues of conduct
Loss-allocation and conduct-regulation are not rigid categories. The
distinction between them serves as a proxy for the ultimate question of
which state has the greater interest in having its law applied. The
assumption is that in conflicts between laws aimed at the regulation of
the law of the place of the tort will usually have a predominant
if not exclusive concern because the locus jurisdiction's interest
in protecting the reasonable expectations of the parties who
relied on it to govern their primary conduct and in the admonitory
that applying its law will have on similar conduct in the future
assume critical importance and outweigh any interests of the
Schultz, 65 N.Y.2d at 198, 480 N.E.2d at 685, 491 N.Y.S.2d at 96
(internal quotation marks and citations omitted). Thus "it would be
almost unthinkable to seek the applicable rule in the law of some other
place" than the place where the tort occurred where that jurisdiction's
conduct-regulating laws were designed to control the conduct at issue.
Babcock, 12 N.Y.2d at 483, 191 N.E.2d at 280, 240 N.Y.S.2d at 751.
By contrast, where the conflict is between loss-allocating rules, the
locus jurisdiction has a lesser interest and the interest of the parties'
domiciles assumes correspondingly greater importance. See, e.g., Cooney,
81 N.Y.2d at 72, 612 N.E.2d at 280, 595 N.Y.S.2d at 922 ("if competing
`postevent remedial rules' are at stake other factors are taken into
consideration, chiefly the parties' domiciles" (citing Schultz, 65 N.Y.2d
at 197-99, 480 N.E.2d at 684, 491 N.Y.S.2d at 95)); AroChem, 968 F.2d at
270 ("[W]hen the law in conflict is loss allocating, the state where at
least one of the parties is domiciled generally applies.").
In cases where the defendant's tortious conduct and the plaintiffs
injury occur in different states "the place of the wrong is considered to
be the place where the last event necessary to make the actor liable
occurred." Schultz, 65 N.Y.2d at 195, 480 N.E.2d at 683, 491 N.Y.S.2d at
94. See also Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 13
(2d Cir. 1996); Kush v. Abbott Lab., 238 A.D.2d 172, 173, 655 N.Y.S.2d 520,
521 (1st Dep't 1997).
A court may refuse to apply a foreign law deemed applicable under New
York's choice of law rules only where that law is "truly obnoxious" to
New York public policy. Brink's Ltd. v. South African Airways,
93 F.3d 1022, 1031 (2d Cir. 1996), cert. denied, 519 U.S. 1116, 117
S.Ct. 959, 136 L.Ed.2d 845 (1997). See also, Cooney, 81 N.Y.2d at 78, 612
N.E.2d at 284, 595 N YS.2d at 926 ("[W]hen otherwise applicable foreign
law would `violate some fundamental principle of justice, some prevalent
conception of good morals, some deep-rooted tradition of the common weal'
the court may refuse to enforce it." (quoting Loucks v. Standard Oil
Co., 224 N.Y. 99, 111, 120 N.E. 198, 202 (1918) (Cardozo, J.))). Public
policy exceptions are reserved for those rare cases in which choice of a
foreign jurisdiction's law would be deeply abhorrent from the point of
view of fundamental New York policy. See, e.g., Mertz v. Mertz,
271 N.Y. 466, 3 N.E.2d 597 (1936) (interspousal torts). Frequent public
policy exceptions would entirely frustrate choice of law principles. As
Chief Judge Kaye explained,
[P]lainly not every difference between foreign and New York
law threatens our public policy. Indeed, if New York statutes
or court opinions were routimely read to express fundamental
policy, choice of law principles would be meaningless. Courts
invariably would be
forced to prefer New York law over conflicting foreign law on
public policy grounds.
Cooney, 81 N.Y.2d at 79, 612 N.E.2d at 284, 595 N.Y.S.2d at 926.