Conflict Of Laws - Tort - Choice Of Law

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Morris on torts

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In the course of the 20th century, most legal systems developed conflicts rules which applied, or at least gave pride of place to, the law of the place of the tort, the lex loci delicti. (…) The adoption of the law of the place of the tort as the prevailing doctrine reflected in part ideas as to the “territoriality” of law. It seemed natural to many lawyers to argue that the law of the place where events occur is the only law that can attribute legal consequences to them, and argument seen by some to follow from the … “vested rights” theory. (…) A more pragmatic argument in favour of applying the law of the place of the tort is that it usually accords with the legitimate expectations of the parties. The law of torts attaches certain liabilities to certain kinds of conduct and to the creation of certain social risks. Those engaging in activities that may involve liability should be able to calculate the risks they are incurring, and to insure against them. Everyone should be entitled to adjust his or her conduct to the law of the country in which the conduct is to take place. The ancient adage “when in Rome, do as the Romans do” becomes, in modern life, “when in Rome see that your insurance policy covers the risks against which Romans insure”.

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Babcock v Jackson

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Mr. Jackson was driving in the Province of Ontario, he apparently lost control of the car; it went off the highway into an adjacent stone wall, and Miss Babcock was seriously injured. Upon her return to this State, alleged negligence on his part in operating his automobile.

Ontario statute providing that "the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in … the motor vehicle" (Highway Traffic Act of Province of Ontario …, §105, subd. [2]).


Shall the law of the place of the tort invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?

Using Auten: : ‘Grouping of Contacts’ and ‘Interest Analysis’

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Bernhard v Harrah’s Club

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Defendant Harrah's Club, a Nevada corporation, owned and operated gambling establishments in the State of Nevada in which intoxicating liquors were sold, furnished to the public and given away for consumption on the premises. Defendant advertised for and solicited in California the business of California residents at such establishments knowing and expecting that many California residents would use the public highways in going to and from defendant's drinking and gambling establishments.
On July 24, 1971, Fern and Philip Myers, in response to defendant's advertisements and solicitations, drove from their California residence to defendant's gambling and drinking club in Nevada, where they stayed until the early morning hours of July 25, 1971. During their stay, the Myers were served numerous alcoholic beverages by defendant's employees, progressively reaching a point of obvious intoxication rendering them incapable of safely driving a car. Nonetheless defendant continued to serve and furnish the Myers alcoholic beverages.
While still in this intoxicated state, the Myers drove their car back to California. Proceeding in a northeasterly direction on Highway 49, near Nevada City, California, the Myers' car, driven negligently by a still intoxicated Fern Myers, drifted across the center line into the lane of oncoming traffic and collided head-on with plaintiff Richard A. Bernhard, a resident of California, who was then driving his motorcycle along said highway. As a result of the collision plaintiff suffered severe injuries. Defendant's sale and furnishing of alcoholic beverages to the Myers, who were intoxicated to the point of being unable to drive safely, was negligent and was the proximate cause of the plaintiff's injuries in the ensuing automobile accident in California for which plaintiff prayed $ 100,000 in damages.

(Tavern owner in Nevada not eligible for damages)

"[To] assert a conflict between the interests of the forum and the foreign state is a serious matter; the mere fact that a suggested broad conception of a local interest will create conflict with that of a foreign state is a sound reason why the conception should be reexamined, with a view to a more moderate and restrained interpretation both of the policy and of the circumstances in which it must be applied to effectuate the forum's legitimate purpose. . . . An analysis of this kind . . . was brilliantly performed by Justice Traynor in Bernkrant v. Fowler (1961) 55 Cal.2d 588 [12 Cal.Rptr. 266, 360 P.2d 906]." (Currie, The Disinterested Third State (1963) 28 Law & Contemp. Prob., pp. 754, 757)

This process of reexamination requires identification of a "real interest as opposed to a hypothetical interest" on the part of the forum (…) and can be approached under principles of "comparative impairment." (Baxter, Choice of Law and the Federal System, supra, 16 Stan.L.Rev. 1-22)

Once this preliminary analysis has identified a true conflict of the governmental interests involved as applied to the parties under the particular circumstances of the case, the "comparative impairment" approach to the resolution of such conflict seeks to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state. This analysis proceeds on the principle that true conflicts should be resolved by applying the law of the state whose interest would be the more impaired if its law were not applied.

As Harrah advertised in CA, more adversely affected.