488 N.W.2d 63 (S.D. 1992), 17400, Chambers v. Dakotah Charter, Inc.

Docket Nº:17400, 17404.
Citation:488 N.W.2d 63
Opinion Judge:The opinion of the court was delivered by: Zinter
Party Name:Charlotte CHAMBERS and Glenn Norman Chambers, Plaintiffs and Appellants, v. DAKOTAH CHARTER, INC., a South Dakota corporation, Defendant and Appellee.
Attorney:Jon C. Sogn of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
Case Date:June 03, 1992
Court:Supreme Court of South Dakota

Page 63

488 N.W.2d 63 (S.D. 1992)

Charlotte CHAMBERS and Glenn Norman Chambers, Plaintiffs and

Appellants,

v.

DAKOTAH CHARTER, INC., a South Dakota corporation, Defendant

and Appellee.

Nos. 17400, 17404.

Supreme Court of South Dakota.

June 3, 1992

Argued Sept. 10, 1991.

Jon C. Sogn of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, for plaintiffs and appellants.

John E. Simko and Mark Mickelson, Legal Intern of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee.

ZINTER, Circuit Judge.

Plaintiffs, Charlotte and Glenn Chambers (Charlotte or Chambers), appeal from a jury verdict in favor of Defendant, Dakotah Charter, Inc. (Dakotah Charter). The questions presented on appeal are (1), whether South Dakota courts should continue to follow the choice of laws rule of lex loci delecti (law of the place of the

Page 64

wrong) in multi-state tort actions and (2), whether the trial court should have applied the Missouri law of comparative negligence in an action between South Dakota domiciliaries arising from an accident on a bus in Missouri. The trial court declined to follow lex loci delecti, and it applied the South Dakota law of comparative negligence. We affirm.

In May 1989, Charlotte and thirty-four other South Dakota residents chartered a bus in Sioux Falls from Dakotah Charter, a South Dakota corporation. The purpose of the trip was to attend a Tae Kwon Do tournament in Arkansas. While en route from South Dakota to Arkansas, the bus stopped on three occasions for the convenience of the passengers and refueling. The first and second stops, in Omaha, Nebraska and St. Joseph, Missouri, occurred without incident. On the third stop, in Nevada City, Missouri, Charlotte fell on the steps in the bus and severely fractured her ankle.

Chambers commenced actions for personal injury and loss of consortium. Chambers contended that Dakotah Charter negligently failed to maintain the interior of the bus in a safe condition. Charlotte specifically contended that she fell on a discarded piece of candy that was distributed to children by Dakotah Charter's bus driver during the first leg of the trip. Dakotah Charter denied Chambers' allegations and also contended that Charlotte was contributorily negligent.

Although the contributory negligence of a plaintiff no longer constitutes an absolute bar to recovery in either South Dakota or Missouri, each state's comparative negligence law is slightly different. Missouri is a pure comparative negligence state. Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983). Under Missouri law, if a plaintiff is determined to be contributorily negligent in any degree, the plaintiff may still recover, but the plaintiff's damages are reduced by the percentage of fault that is attributed to the plaintiff's conduct. Id. Under South Dakota law, a contributorily negligent plaintiff's damages are also reduced in proportion to the amount of the plaintiff's contributory negligence. A contributorily negligent plaintiff may not, however, recover anything in South Dakota if the plaintiff's negligence is more than slight in comparison with the negligence of the defendant. SDCL 20-9-2. 1

Based upon the three special concurrences in Owen v. Owen, 444 N.W.2d 710 (S.D.1989), the trial court declined to follow the traditional rule of lex loci delicti and apply the Missouri law of comparative negligence. Instead, the trial court instructed the jury under South Dakota's comparative negligence statute. Chambers argue that, under lex loci delicti or the modern approaches discussed in Owen, the trial court should have given Chambers' proposed instruction which incorporated Missouri law. We disagree.

Our standard of review of the trial court's instructions is well established. An appellant has the burden to show not only that the instruction given was in error, but also that it was prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if the appellant's instructions had been given. Lytle v. Morgan, 270 N.W.2d 359, 362 (S.D.1978).

CHOICE OF LAWS APPROACH

Until 1989 this Court has followed an unqualified rule of lex loci delicti to govern the choice of laws in multi-state tort actions. See Owen, 444 N.W.2d 710; Heidemann v. Rohl, 86 S.D. 250, 194 N.W.2d 164 (1972). Although we did not formally abandon lex loci delecti in Owen, the "majority" opinion, written by Morgan, J. and concurred in by Wuest, C.J., took the first step in that direction when it adopted a

Page 65

public policy exception to the rule "to avoid applications that are repugnant to the public policy of our state." Owen, 444 N.W.2d at 713. Although the three remaining members of this Court concurred in the Owen result, they voted by special concurrence to "[j]oin the vast majority of jurisdictions which [have] abolish[ed] the archaic and rigid rule of lex loci in favor of an approach which gives flexibility and addresses conflicts of laws issues in a responsible and equitable manner." Id. at 714-715 (Miller, J., concurring specially, joined by Henderson and Sabers, JJ.). Although the reasons for abandonment of the rule were well articulated by present Chief Justice Miller in Owen, 444 N.W.2d at 715, our adoption of lex loci delecti in Heidemann and stare decisis warrant a further limited discussion of reasons for abandonment of the traditional rule.

Lex loci delecti is a judge made rule of law that is based on the doctrine of vested rights. In Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 746, 191 N.E.2d 279, 281 (1963), the case that led many courts to abandon lex loci delecti, the New York Court of Appeals explained that:

The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court ..., has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort.... It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law.... Although espoused by such great figures as Justice HOLMES ... and Professor Beale ... the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act. 'The vice of the vested rights theory', it has been aptly stated, 'is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved'.... More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. It is for this very reason that, despite the advantages of certainty, ease of application and predictability which it affords ..., there has in recent years been increasing criticism of the traditional rule by commentators and a judicial trend towards its abandonment or modification. (citations omitted).

Twenty years ago we adopted lex loci delecti in Heidemann, 194 N.W.2d at 169. At that time we noted that lex loci delecti was the prevailing rule. Id. at 167. Although Babcock had been decided at that time, we declined to adopt a modern approach until a satisfactory substitute was developed because we noted "considerable confusion and inconsistency" in the application of modern rules. Id. at 169. We observed, however, that the condition was perhaps characteristic of any transitional period in a changing law era. Id.

The transition to a new approach has continued since Heidemann. Today only fifteen states still retain the traditional rule, 2 and the majority of states which

Page 66

have chosen a new approach have adopted some version of the significant relationship approach. See generally Smith, Choice of Law in the United States, 38 Hastings L.J. 1041 (1987); Kay, Theory into Practice: Choice of Law in the Courts, 34 Mercer L.Rev. 521 (1983). Furthermore, courts have started to overcome the inconsistency we noted Heidemann, at least in cases such as this one which involves contributory/comparative negligence. 3 Because a discernible trend toward one modern approach has developed among states which have abandoned the traditional rule and because substantial precedent is developing under the modern approaches, we now join the clear majority and abandon lex loci delecti to govern choice of laws analysis in multi-state tort actions. Heidemann and other cases to the contrary are modified as hereinafter provided.

Having abolished lex loci delecti as South Dakota's choice of law rule, we turn to the adoption of an appropriate modern approach. The selection of the proper modern approach has been the subject of much discussion by scholars and courts. See Owen, 444 N.W.2d at 714 n. 2. Although three members of this Court expressed a preference in Owen for the "choice-influencing considerations" approach refined by Professor Robert A. Leflar, 4 we left the matter for further analysis. Subsequent analysis by others has provided thoughtful insight into the adoption of an appropriate modern approach. See Thatcher, Choice of Law in Multi-State Tort Actions after Owen v. Owen: The Less Things Change ..., 35 S.D.L.Rev. 372 (1989-1990).

No less than six approaches are in current use in one or more combinations. 5 This diversity has been caused in part by substantial disagreement among scholars about fundamental questions underlying each approach. Unfortunately, there is probably less consensus among the...

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48 practice notes
  • Slightly-gross: South Dakota's addiction to a bad comparative negligence law and the need for change.
    • United States
    • South Dakota Law Review Vol. 59 Nbr. 1, March - March 2014
    • March 22, 2014
    ...See supra note 125 and accompanying text. (225.) Compare S.D.C.L. [section] 20-9-2 (2004) with S.D.C.L. [section] 20-9-2 (1997). (226.) 488 N.W.2d 63 (S.D. 1992). (227.) Chambers, 488 N.W.2d at 66-68 (quoting Restatement (Second) of Conflict of Laws [section] 6 (1971)). The test provides, &......
  • Choice of Law Theory and the Metaphysics of the Stand-Alone Trigger
    • United States
    • Iowa Law Review Nbr. 95-4, May 2010
    • May 1, 2010
    ...other than the fortuitous locus of the accident, point to the application of Rhode Island law.”); Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 68 (S.D. 1992) (“It was merely fortuitous that Charlotte slipped while the bus was passing through Missouri.”); Hataway v. McKinley, 830 S.W.2d......
  • 489 N.W.2d 900 (S.D. 1992), 17448, Brazones v. Prothe
    • United States
    • South Dakota Supreme Court of South Dakota
    • August 12, 1992
    ...Prothe? V. Did the trial court err in dismissing Ray Keearns as a party defendant? Based on our decision in Chambers v. Dakotah Charter, 488 N.W.2d 63 (S.D.1992), we affirm. Due to our determination on the first two issues, we need not consider plaintiffs' remaining issues. FACTS This case ......
  • 534 N.W.2d 355 (S.D. 1995), 18623, Sybesma v. Sybesma
    • United States
    • South Dakota Supreme Court of South Dakota
    • July 5, 1995
    ...and probably would have returned a different verdict if the appellant's instructions had been given. Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 64, (S.D.1992). We have stated further, that "an appellant who seeks to set aside a civil verdict because of an incomplete or ambiguous......
  • Free signup to view additional results
46 cases
  • 489 N.W.2d 900 (S.D. 1992), 17448, Brazones v. Prothe
    • United States
    • South Dakota Supreme Court of South Dakota
    • August 12, 1992
    ...Prothe? V. Did the trial court err in dismissing Ray Keearns as a party defendant? Based on our decision in Chambers v. Dakotah Charter, 488 N.W.2d 63 (S.D.1992), we affirm. Due to our determination on the first two issues, we need not consider plaintiffs' remaining issues. FACTS This case ......
  • 534 N.W.2d 355 (S.D. 1995), 18623, Sybesma v. Sybesma
    • United States
    • South Dakota Supreme Court of South Dakota
    • July 5, 1995
    ...and probably would have returned a different verdict if the appellant's instructions had been given. Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 64, (S.D.1992). We have stated further, that "an appellant who seeks to set aside a civil verdict because of an incomplete or ambiguous......
  • 520 N.W.2d 255 (S.D. 1994), 18356, Stockmen's Livestock Exchange v. Thompson
    • United States
    • South Dakota Supreme Court of South Dakota
    • August 3, 1994
    ...in order to resolve questions about which state's laws govern in a particular factual situation. Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63 (S.D.1992). According to the Restatement, "An agency relationship can give rise to three choice-of-law problems: namely, what law should be ......
  • 494 N.W.2d 634 (S.D. 1993), 17850, Selle v. Pierce
    • United States
    • South Dakota Supreme Court of South Dakota
    • January 13, 1993
    ...in this multi-state defamation action? Based on the facts of this case and our recent decisions in Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63 (S.D.1992), and Brazones v. Prothe, 489 N.W.2d 900 (S.D.1992), we reverse. FACTS Selle, a Nebraska resident, was appointed to serve on the Boyd......
  • Free signup to view additional results
2 books & journal articles
  • Choice of Law Theory and the Metaphysics of the Stand-Alone Trigger
    • United States
    • Iowa Law Review Nbr. 95-4, May 2010
    • May 1, 2010
    ...other than the fortuitous locus of the accident, point to the application of Rhode Island law.”); Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 68 (S.D. 1992) (“It was merely fortuitous that Charlotte slipped while the bus was passing through Missouri.”); Hataway v. McKinley, 830 S.W.2d......
  • Slightly-gross: South Dakota's addiction to a bad comparative negligence law and the need for change.
    • United States
    • South Dakota Law Review Vol. 59 Nbr. 1, March - March 2014
    • March 22, 2014
    ...See supra note 125 and accompanying text. (225.) Compare S.D.C.L. [section] 20-9-2 (2004) with S.D.C.L. [section] 20-9-2 (1997). (226.) 488 N.W.2d 63 (S.D. 1992). (227.) Chambers, 488 N.W.2d at 66-68 (quoting Restatement (Second) of Conflict of Laws [section] 6 (1971)). The test provides, &......