REST 2d CONFL s 145 Restatement (Second) of Conflict of Laws s 145 (1969 Main Vol.)
s 145. THE GENERAL PRINCIPLE TEXT
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in s 6.
(2) Contacts to be taken into account in applying the principles of s 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.
Comment: a. Scope of section. The rule of this Section states a principle applicable to all torts and to all issues in tort and, as a result, is cast in terms of great generality. This is made necessary by the great variety of torts and of issues in tort and by the present fluidity of the decisions and scholarly writings on choice of law in torts. Title B (ss 146­155) deals with particular torts as to which it is possible to state rules of greater precision. Undoubtedly, this list will lengthen with increased experience. Title C (ss 156­174) deals with particular issues in tort. It seems clear that the best way to bring precision into the field is by attempting to state special rules for particular torts and for particular issues in tort.
Comment on Subsection (1):
b. Rationale. The principles stated in s 6 underlie all rules of choice of law and are used in evaluating the significance of a relationship, with respect to the particular issue, to the potentially interested states, the occurrence and the parties. The factors listed in Subsection (2) of the rule of s 6 can be divided into five groups. One group is concerned with the fact that in multistate cases it is essential that the rules of decision promote mutually harmonious and beneficial relationships in the interdependent community, federal or international. The second group focuses upon the purposes, policies, aims and objectives of each of the competing local law rules urged to govern and upon the concern of the potentially interested states in having their rules applied. The factors in this second group are at times referred to as "state interests" or as appertaining to an "interested state." The third group involves the needs of the parties, namely the protection of their justified expectations and certainty and predictability of result. The fourth group is directed to implementation of the basic policies underlying the particular field of law, such as torts or contracts, and the fifth group is concerned with the needs of judicial administration, namely with ease in the determination and application of the law to be applied. The factors listed in Subsection (2) of the rule of s 6 vary somewhat in importance from field to field. Thus, the protection of the justified expectations of the parties, which is of extreme importance in such fields as contracts, property, wills and trusts, is of lesser importance in the field of torts. This is because persons who cause injury on nonprivileged occasions, particularly when the injury is unintentionally caused, usually act without giving thought to the law that may be applied to determine the legal consequences of this conduct. Such persons have few, if any, justified expectations in the area of choice of law to protect, and as to them the protection of justified expectations can play little or no part in the decision of a choice of law question. Likewise, the values of certainty, predictability and uniformity of result are of lesser importance in torts than in areas where the parties and their lawyers are likely to give thought to the problem of the applicable law in planning their transactions. Finally, a number of policies, such as the deterrence of tortious conduct and the provision of compensation for the injured victim, underlie the tort field. These policies are likely to point in different directions in situations where the important elements of an occurrence are divided among two or more states. Because of the relative insignificance of the above­mentioned factors in the tort area of choice of law, the remaining factors listed in s 6 assume greater importance. These remaining factors are the needs of the interstate and international systems, the relevant policies of the forum, the relevant policies of other interested states and particularly of the state with the dominant interest in the determination of the particular issue, and ease in the determination and application of the law to be applied.
c. Purpose of tort rule. The purpose sought to be achieved by the relevant tort rules of the interested states, and the relation of these states to the occurrence and the parties, are important factors to be considered in determining the state of most significant relationship. This is because the interest of a state in having its tort rule applied in the determination of a particular issue will depend upon the purpose sought to be achieved by that rule and by the relation of the state to the occurrence and the parties. If the primary purpose of the tort rule involved is to deter or punish misconduct, as may be true of rules permitting the recovery of damages for alienation of affections and criminal conversation, the state where the conduct took place may be the state of dominant interest and thus that of most significant relationship (see s 154, Comment c). On the other hand, when the tort rule is designed primarily to compensate the victim for his injuries, the state where the injury occurred, which is often the state where the plaintiff resides, may have the greater interest in the matter. This factor must not be over­ emphasized, however. To some extent, at least, every tort rule is designed both to deter other wrongdoers and to compensate the injured person. Undoubtedly, the relative weight of these two objectives varies somewhat from rule to rule, and in the case of a given rule it will frequently be difficult to tell which of these objectives is the more important. A rule which exempts the actor from liability for harmful conduct is entitled to the same consideration in the choice­of­law process as is a rule which imposes liability. Frequently, however, it will be more difficult to discern the purpose of a rule denying liability than of a rule which imposes it. Take, for example, a statute which abolishes the right of action for alienation of affections. Such a statute may have been designed only to spare the local courts from the burden of having to hear such actions. If so, the statute should only be applied to bar actions brought in the state of its enactment. On the other hand, the statute may have had as its sole, or alternative, purpose the protection of defendants against being harassed by such actions. If so, there would be a basis for applying the statute to bar an action brought outside the state of its enactment if the complained­of conduct had taken place in that state and particularly if, in addition, the defendant had been domiciled there. Frequently, it will be possible to decide a question of choice of law in tort without paying deliberate attention to the purpose sought to be achieved by the relevant tort rules of the interested states. This will be so whenever by reason of the particular circumstances one state is obviously that of the applicable law.
d. The issue involved. The courts have long recognized that they are
not bound to decide all issues under the local law of a single state. Thus,
in a simple motor accident case that occurred outside the state of the
forum, a court under traditional and prevailing practice applies its own
state's rules to issues involving process, pleadings, joinder of parties,
and the administration of the trial (see Chapter 6), while deciding other
issues­­such as whether the defendant's operation of the
vehicle was negligent­­by reference to the law selected
by application of the rules stated in this Chapter. The rule of this Section
makes explicit that selective approach to choice of the law governing particular
issues. Each issue is to receive separate consideration if it is one which
would be resolved differently under the local law rule of two or more of
the potentially interested states. Experience and analysis have shown that
certain issues that recur in tort cases are most significantly related
to states with which they have particular connections or contacts. So,
for example, a state has an obvious interest in regulating the conduct
of persons within its territory and in providing redress for injuries that
occurred there. Thus, subject only to rare exceptions, the local law of
the state where conduct and injury occurred will be applied to determine
whether the actor satisfied minimum standards of acceptable conduct and
whether the interest affected by the actor's conduct was entitled to legal
protection (see ss 146­147). On the other hand, the local law of
the state where the parties are domiciled, rather than the local law of
the state of conduct and injury, may be applied to determine whether one
party is immune from tort liability to the other or may be held liable
to the other only for injuries resulting from intentional conduct or from
some aggravated form of negligence, or conversely, whether one party owes
the other a higher standard of care than would be required in the circumstances
of the case by the local law of the state where conduct and injury occurred.
An example is the issue of intra­family immunity, which, as stated
in s 169, is usually determined by the local law of the state of the spouses'
common domicil. Likewise, the circumstances under which a guest passenger
has a right of action against the driver of an automobile for injuries
suffered as a result of the latter's negligence may be determined by the
local law of their common domicil, if at least this is the state from which
they departed on their trip and that to which they intended to return,
rather than by the local law of the state where the injury occurred. Again
the state where the conduct and injury occurred will not necessarily be
the state that is primarily concerned with the issue whether tort claims
arising from the injury survive the death of the tortfeasor. So when conduct
and injury occur in state X but both the plaintiff and the defendant are
domiciled in state Y, it would seem that, ordinarily at least, Y would
have the greater interest in the issue of survival and that its law should
control (see s 167, Comment c). Similarly, whether a charitable corporation
can successfully assert the defense of charitable immunity may be determined
by the local law of the state where the plaintiff is domiciled and the
defendant incorporated rather than by the local law of the state where
conduct and injury occurred (see s 168, Comment b). By way of further example,
it would seem that the state where all interested persons are domiciled
will, usually at least, have the greatest interest in determining the extent
to which each shall share in a tort recovery. So it may be that questions
relating to the distribution between spouses of a recovery for an injury
to one of the spouses should be determined by the local law of their domicil
(cf. s 166, Comment b). Undoubtedly, future cases will provide the basis
for constructing special rules for still other issues of choice of law.
Comment on Subsection (2):
e. Important contacts in determining state of most significant relationship. In applying the principles of s 6 to determine the state of most significant relationship, the forum should give consideration to the relevant policies of all potentially interested states and the relevant interests of those states in the decision of the particular issue. Those states which are most likely to be interested are those which have one or more of the following contacts with the occurrence and the parties. Some of these contacts also figure prominently in the formulation of the applicable rules of choice of law. The place where injury occurred. In the case of personal injuries or of injuries to tangible things, the place where the injury occurred is a contact that, as to most issues, plays an important role in the selection of the state of the applicable law (see ss 146­147). This contact likewise plays an important role in the selection of the state of the applicable law in the case of other kinds of torts, provided that the injury occurred in a single, clearly ascertainable, state. This is so for the reason among others that persons who cause injury in a state should not ordinarily escape liabilities imposed by the local law of that state on account of the injury. So in the case of false imprisonment, the local law of the state where the plaintiff was imprisoned will usually be applied. Likewise, when a person in state X writes a letter about the plaintiff which is received by a person in state Y, the local law of Y, the state where the publication occurred, will govern most issues involving the tort, unless the contacts which some other state has with the occurrence and the parties are sufficient to make that other state the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties (see s 149). Situations do arise, however, where the place of injury will not play an important role in the selection of the state of the applicable law. This will be so, for example, when the place of injury can be said to be fortuitous or when for other reasons it bears little relation to the occurrence and the parties with respect to the particular issue (see s 146, Comments d­e). This will also be so when, such as in the case of fraud and misrepresentation (see s 148), there may be little reason in logic or persuasiveness to say that one state rather than another is the place of injury, or when, such as in the case of multistate defamation (see s 150), injury has occurred in two or more states. Situations may also arise where the defendant had little, or no, reason to foresee that his act would result in injury in the particular state. Such lack of foreseeability on the part of the defendant is a factor that will militate against selection of the state of injury as the state of the applicable law. Indeed, application of the local law of the state of injury in such circumstances might on occasion raise jurisdictional questions (see s 9, Comment f). The place where conduct occurred. When the injury occurred in a single, clearly ascertainable state and when the conduct which caused the injury also occurred there, that state will usually be the state of the applicable law with respect to most issues involving the tort. This is particularly likely to be so with respect to issues involving standards of conduct, since the state of conduct and injury will have a natural concern in the determination of such issues. Choice of the applicable law becomes more difficult in situations where the defendant's conduct and the resulting injury occurred in different states. When the injury occurred in two or more states, or when the place of injury cannot be ascertained or is fortuitous and, with respect to the particular issue, bears little relation to the occurrence and the parties, the place where the defendant's conduct occurred will usually be given particular weight in determining the state of the applicable law. For example, the place where the conduct occurred is given particular weight in the case of torts involving interference with a marriage relationship (see s 154) or unfair competition (see Comment f), since in the case of such torts there is often no one clearly demonstrable place of injury. Likewise, when the primary purpose of the tort rule involved is to deter or punish misconduct, the place where the conduct occurred has peculiar significance (see Comment c). And the same is true when the conduct was required or privileged by the local law of the state where it took place (see s 163, Comment a). The place where the defendant's conduct occurred is of less significance in situations where, such as in the case of multistate defamation (see s 150), a potential defendant might choose to conduct his activities in a state whose tort rules are favorable to him. The domicil, residence, nationality, place of incorporation and place of business of the parties. These are all places of enduring relationship to the parties. Their relative importance varies with the nature of the interest affected. When the interest affected is a personal one such as a person's interest in his reputation, or in his right of privacy or in the affections of his wife, domicil, residence and nationality are of greater importance than if the interest is a business or financial one, such as in the case of unfair competition, interference with contractual relations or trade disparagement. In these latter instances, the place of business is the more important contact. At least with respect to most issues, a corporation's principal place of business is a more important contact than the place of incorporation, and this is particularly true in situations where the corporation does little, or no, business in the latter place. These contacts are of importance in situations where injury occurs in two or more states. So the place of the plaintiff's domicil, or on occasion his principal place of business, is the single most important contact for determining the state of the applicable law as to most issues in situations involving the multistate publication of matter that injures plaintiff's reputation (see s 150) or causes him financial injury (see s 151) or invades his right of privacy (see s 153). In the case of other torts, the importance of these contacts depends largely upon the extent to which they are grouped with other contacts. The fact, for example, that one of the parties is domiciled or does business in a given state will usually carry little weight of itself. On the other hand, the fact that the domicil and place of business of all parties are grouped in a single state is an important factor to be considered in determining the state of the applicable law. The state where these contacts are grouped is particularly likely to be the state of the applicable law if either the defendant's conduct or the plaintiff's injury occurred there. This state may also be the state of the applicable law when conduct and injury occurred in a place that is fortuitous and bears little relation to the occurrence and the parties (see s 146, Comments d­e). The importance of those contacts will frequently depend upon the particular issue involved (see Comment d). The place where the relationship, if any, between the parties is centered. When there is a relationship between the plaintiff and the defendant and when the injury was caused by an act done in the course of the relationship, the place where the relationship is centered is another contact to be considered. So when the plaintiff is injured while traveling on a train or while riding as a guest passenger in an automobile, the state where his relationship to the railroad or to the driver of the automobile is centered may be the state of the applicable law. This is particularly likely to be the case if other important contacts, such as the place of injury or the place of conduct or the domicil or place of business of the parties, are also located in the state (see, for example, s 146, Comment e and s 147, Comment e). On rare occasions, the place where the relationship is centered may be the most important contact of all with respect to most issues. A possible example is where the plaintiff in state X purchases a train ticket from the defendant to travel from one city in X to another city in X, but is injured while the train is passing for a short distance through state Y. Here X local law, rather than the local law of Y, may be held to govern the rights and liabilities of the parties. COMMENTS Illustrations: 1. A and B are both domiciled in state X. A accepts B's invitation to accompany him as his guest on an automobile trip which is to start in X, go through several neighboring states and then end in X. B is insured against liability by an X insurance company. While in state Y, a neighboring state, B negligently drives the automobile off the road and A is injured. A brings suit to recover for his injuries in a court of state Z. B would not be liable to A under Y local law, since a Y statute provides that a guest passenger shall have no right of action against his host for negligently­caused injuries. B would be liable to A, however, under X local law. The first question for the Z court to determine is whether the interests of both X and Y would be furthered by application of their respective local law rules. This is a question that can only be determined in the light of the respective purposes of these rules (see Comment c). The interests of X would be furthered by application of the X rule if, as is probably the case, one purpose of this rule is to protect X passengers against negligent injury by X hosts. Whether the interests of Y would be furthered by application of the Y rule is more uncertain. If the only purpose of the Y rule is to protect Y insurance companies against collusion between host and guest, Y interests would not be furthered by application of the Y rule since an X insurance company is involved. In such a case, the Z court should permit A to recover against B by application of X local law. On the other hand, Y interests would presumably be furthered by application of the Y rule if at least one purpose of this rule is to protect hosts, while in Y, against the ingratitude of their guests. Among the questions for the Z court to determine in such a case would be whether X's interest in the application of its rule outweighs the countervailing interest of Y. Factors which would support an affirmative answer to this question are that A and B are both domiciled in X and that the relationship between them was centered in X. Other factors which would support application of the X rule are that the trip began and was to end in X and that it could be deemed fortuitous that the accident occurred in Y rather than in some other state. If it were to be found that a Y court would not have applied its rule to the facts of the present case, the arguments for applying the X rule would be even stronger, for it would then appear that, even in the eyes of the Y court, Y interests were not sufficiently involved to require application of the Y rule (see s 8, Comment k). 2. Same facts as in Illustration 1 except that the accident would not have occurred if the automobile had been equipped with a safety device required by Y local law, but not by the local law of X, and the question is whether B should be held liable to A as a result. In this case, Y's interests would be furthered by application of its rule since Y is clearly concerned with what are standards of acceptable conduct in Y. Among the other factors which would support application by the Z court of the Y rule in order to hold B liable are that conduct and injury occurred in Y and that Y has an obvious interest in the application of its rule. If it were to be found that an X court would have applied the Y rule to the facts of the present case, the arguments for applying the Y rule would be even stronger. For it would then appear that, even in the eyes of the X court, X interests were not sufficiently involved to require application of the relevant X rule (see s 8, Comment k). COMMENTS
Comment: f. The tort involved. The relative importance of the contacts mentioned above varies somewhat with the nature of the tort involved. Thus, the place of injury is of particular importance in the case of personal injuries and of injuries to tangible things (see ss 146­147). The same is true in the case of false imprisonment and of malicious prosecution and abuse of process (see s 155). On the other hand, the place of injury is less significant in the case of fraudulent misrepresentations (see s 148) and of such unfair competition as consists of false advertising and the misappropriation of trade values. The injury suffered through false advertising is the loss of customers or of trade. Such customers or trade will frequently be lost in two or more states. The effect of the loss, which is pecuniary in its nature, will normally be felt most severely at the plaintiff's headquarters or principal place of business. But this place may have only a slight relationship to the defendant's activities and to the plaintiff's loss of customers or trade. The situation is essentially the same when misappropriation of the plaintiff's trade values is involved, except that the plaintiff may have suffered no pecuniary loss but the defendant rather may have obtained an unfair profit. For all these reasons, the place of injury does not play so important a role for choice­of­law purposes in the case of false advertising and the misappropriation of trade values as in the case of other kinds of torts. Instead, the principal location of the defendant's conduct is the contact that will usually be given the greatest weight in determining the state whose local law determines the rights and liabilities that arise from false advertising and the misappropriation of trade values. The principal location of the defendant's conduct is also the single most important contact in the case of interference with a marriage relationship (see s 154). In situations involving the multistate publication of matter that injures the plaintiff's reputation (see s 150) or causes him financial injury (see s 151) or invades his right of privacy (see s 153), the place of the plaintiff's domicil, or on occasion his principal place of business, is the single most important contact for determining the state of the applicable law.
g. Recovery on some theory other than tort. A plaintiff who cannot obtain recovery in tort under the law selected by application of the rule of this Section may sometimes obtain application of a more favorable law by relying upon some other basis of liability. Thus, the plaintiff may have the basis for a claim that the defendant is liable to him for his injuries on the ground of breach of contract. If so, the applicable law would be that selected by application of the rules of ss 187­188. Conversely, a defendant who would be liable under the law selected by application of the rule of this Section may on occasion be able to escape liability because of some provision in a contract. A relationship of master and servant, carrier and passenger or vendor and vendee may provide a basis for a contention that the case should be characterized as one of contract rather than tort. In some situations, the same result will be reached irrespective of whether the problem is characterized as one of tort or of contract. As to characterization, see s 7.
h. Reference is to "local law" of selected state. The reference is to the "local law" of the state of the applicable law and not to that state's "law, " which means the totality of its law including its choice­ of­law rules (see s 4). Values of certainty of result and of ease of application dictate that the forum should apply the local law of the selected state and not concern itself with the complications that might arise if that state's choice­of­ law rules were applied. There is also no basis for supposing that fairness requires the forum to apply the choice­of­law rules of the selected state. To the extent that they may give thought to the possible consequences before engaging in conduct which may be tortious, persons would probably expect that the local law of the state selected by application of the present rule would be applied. On the other hand, in judging a state's interest in the application of one of its local law rules, the forum should concern itself with the question whether the courts of that state would have applied this rule in the decision of the case. The fact that these courts would have applied this rule may indicate that an important interest of that state would be served if the rule were applied by the forum. Conversely, the fact that these courts would not have applied this rule may indicate that no important interest of that state would be infringed if the rule were not applied by the forum (see s 8, Comment k). It should be reiterated that in the torts area the forum will not apply the choice­of­law rules of another state. The forum will consult these rules, however, for whatever light these rules may shed upon the extent of the other state's interest in the application of its relevant local law rule.
COMMENTS Illustration: 3. In state X, A shoots at a bird and hits B, who is standing in state Y. B, who is domiciled in Y, brings suit against A in state Z. If the Z court determines that Y is the state of most significant relationship, the Z court will apply Y local law. In determining whether Y is the state of most significant relationship, the Z court may consider whether the Y courts would have applied their own local law or the local law of another state in deciding the particular issue. COMMENTS Comment: i. When rule of two or more states is the same. When certain contacts involving a tort are located in two or more states with identical local law rules on the issue in question, the case will be treated for choice­of­law purposes as if these contacts were grouped in a single state.
COMMENTS Illustration: 4. By conduct in state X, A injures B in state Y. X and Y have the same local law rules with respect to liability in tort for causing personal injuries. The case will be treated for the purposes of this Section as if conduct and injury had taken place in one state.