traditional choice-of-law approach for torts law of the place of the harm

traditional choice-of-law approach for torts law of the place of the harm

Alabama Great Southern RR v. Carroll (Ala. 1892)

• D, in Mississippi, makes material misrepresentations by phone to P in Alabama. In reliance upon these representations, P sends goods from Alabama to D, in Mississippi. D keeps the goods. P sues D for fraud (a tort). Which law applies?

• D, broadcasting in Alabama, slanders P. The broadcast is heard in Mississippi and Louisiana. P has a good reputation in both states, which is affected. Which state's or states' law applies?

• § 377. The Place Of Wrong • Rule 5. Where harm is done to the reputation of a person, the place of wrong is where the defamatory statement is communicated.

• A, broadcasting in state X, slanders B. B is well and favorably known in state Y and the broadcast is heard there by many people conversant with B's good repute. The place of wrong is Y.

• D lives in Mass. • His dog strays from Mass to NH, bites P there • Mass follows the dangerous propensity (one free bite) approach – that is, a negligence approach negligence approach • NH, has strict liability • which law applies?

• Place of the wrong determines: • whether damages are recognized (eg psychological harm, loss of consortium, wrongful death • limitations on damages, exemplary (eg punitive) damages • standard of care (negligence, strict liability) • whether contributory negligence or comparative fault applies – even when act of P’s negligence occurs in another state

• By the law of Mississippi, due care requires that every locomotive be double checked for defective links. • By the law of Alabama, there is no such requirement. • The inspector for Alabama Great Southern RR checked for defects in Alabama once. • The link broke in Mississippi and Carroll was injured there. • Rather than suing the Railroad, Carroll sues the inspector in Alabama for negligent inspection (so Mississippi’s fellow servant rule is not relevant). • Under the First Restatement, does Alabama or Mississippi law apply concerning the question of whether due care requires a double check for defective links?

• § 380(2) • Where by the law of the place of wrong, the liability-creating character of the actor's conduct depends upon the application of a standard of care, and such standard has been defined in particular situations by statute or judicial decision of the law of the place of the actor's conduct, such application of the standard will be made by the forum.

• By the law of Alabama, a police officer has qualified immunity – liable for damages in course of duty only if reckless. • No such immunity in Mississippi. • Officer D, acting in AL, negligently but not recklessly shoots P in the course of an arrest of X • P harmed in MS • Is D liable to P?

• § 382 A person who acts pursuant to a privilege conferred by the law of the place of acting will not be held liable for the results of his act in another state.

• D in New York employs X to operate his truck in state Ontario. • In the course of the day's driving, X drives several miles out of his way on a personal errand, during which time he negligently leaves the truck insecurely parked on a hill. • The truck starts down hill and after crossing the state line from Ontario into Quebec, crashes into P's automobile and demolishes it. • Under the laws of New York and Ontario, X was on a frolic of his own and outside the scope of his employment; under the law of Quebec, X was acting within the scope of his employment. • Is D liable to P (do you use Quebec law)?

• § 387 When a person authorizes another to act for him in any state and the other does so act, whether he is liable for the tort of the other is determined by the law of the place of wrong. • Note: In order that the law of the state of wrong may apply to create liability against the absentee defendant, he must in some way have submitted himself to the law of that state. It is sufficient if he has authorized or permitted another to act for him in the state in which the other's conduct occurs or where it takes effect.

• Scheer v Rockne Motors Corp. • D in NY gave X car but did not authorize him to go to Ontario, • X goes to Ontario • law of Ontario created liability on D for X’s torts • law of NY did not • Does NY or Ontario law apply?

• A court in Alabama is adjudicating a tort occurring in Mississippi • An Alabama statute states that “no court of this state shall provide damages in tort in excess of $100,000.” • Does the statute apply?

• Substance v. procedure • § 412. Measure Of Damages For Tort • The measure of damages for a tort is determined by the law of the place of wrong. • Comment: • Rationale. The right to damages in compensation or punishment for a tort is to be distinguished from the right of access to the courts and from the procedure provided to obtain the damages….

Milliken v Pratt (Mass. 1878)

Assume that under Maine law married women may not act as sureties for their husband and under Mass law they may.

• Offer is sent from Maine to Massachusetts. • Acceptance is written up in Massachusetts and put into a mailbox there. • After mailing, the offeror telephones the offeree to withdraw. • Under the common law, is the withdrawal effective?

• Assume that under Mass law, the contract was consummated when acted upon by the Ps in Maine • But under Maine law the contact was consummated in Mass when guarantee was sent

§ 311. Place Of Contracting • The law of the forum decides as a preliminary question by the law of which state questions arising concerning the formation of a contract are to be determined, and this state is, in the Restatement of this Subject, called the "place of contracting."

• A is exposed to a harmful chemical in Mass • He learns about it in Maine where he worries excessively • The physical consequences manifest themselves in New Hampshire. • Under law of Maine, fear of exposure is a legally cognizable harm, under law of New Hampshire it is not. • Case is adjudicated before a court in New Hampshire • May A receive damages for fear of exposure?