Babcock v. Jackson

• Decision Date: 09 May 1963
• Citation: 95 A.L.R.2d 1,240 N.Y.S.2d 743,12 N.Y.2d 473
• Parties: , 191 N.E.2d 279, 95 A.L.R.2d 1 Georgia W. BABCOCK, Appellant, v. Mabel B. JACKSON, as Executrix of William H. Jackson, Deceased, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 743

240 N.Y.S.2d 743

12 N.Y.2d 473, 191 N.E.2d 279, 95 A.L.R.2d 1

Georgia W. BABCOCK, Appellant, v. Mabel B. JACKSON, as Executrix of William H. Jackson Deceased, Respondent.

Court of Appeals of New York.

May 9, 1963.

John M. Regan, Rochester, for appellant.

Ellsworth Van Graafeiland, Rochester, for respondent.

FULD, Judge.

On Friday, September 16, 1960, Miss Georgia Babcock and her friends, Mr. and Mrs. William Jackson, all residents of Rochester, left that city in Mr. Jackson's automobile, Miss Babcock as guest, for a weekend trip to Canada. Some hours later, as 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, she brought the present action against William Jackson, alleging negligence on his part in operating his automobile. ¹

At the time of the accident, there was in force in Ontario a 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 damages resulting from bodily injury to, or the death of any person being carried in * * * the motor vehicle' (Highway Traffic Act of Province of Ontario (Ontario Rev.Stat. (1960), ch. 172), § 105, subd. (2)). Even though no such bar is recognized under this State's substantive law of torts (see, e. g., Higgins v. Mason, 255 N.Y. 104, 108, 174 N.E. 77, 78-79; Nelson v. Nygren, 259 N.Y. 71, 181 N.E. 52), the defendant moved to dismiss the complaint on the ground that the law of the place where the accident occurred governs and that Ontario's guest statute bars recovery. The court at Special Term, agreeing with the defendant, granted the motion and the Appellate Division, over a strong dissent by Justice HALPERN, affirmed the judgment of dismissal without opinion.

The question presented is simply drawn. Shall the law of the place of the tort ² 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?

The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court (see, e. g., Poplar v. Bourjois, Inc., 298 N.Y. 62, 66, 80 N.E.2d 334, 335, 336; Kaufman v. America Youth Hostels, 5 N.Y.2d 1016, 185 N.Y.S.2d 268, 158 N.E.2d 128, modfg. 6 A.D.2d 223, 177 N.Y.S.2d 587), 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. (See Goodrich, Conflict of Laws (3d ed., 1949), p. 260; Leflar, The Law of Conflict of Laws (1959), p. 207; Stumberg, Principles of Conflict of Laws (2d ed., 1951), p. 182.) 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. (See Hancock, Torts in the Conflict of Laws (1942), pp. 30-36, Reese, The Ever Changing Rules of Choice of Law, Nederlands Tijdschrift Voor International Recht (1962), 389.) Although espoused by such great figures as Justice HOLMES (see Slater v. Mexican Nat. R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900) and Professor Beale (2 Conflict of Laws (1935), pp. 1286-1292), the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considuerations 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. ³ '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'. (Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale L.J. 468, 482-483.) 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 (see Cheatham and Reese, Choice of the Applicable Law, 52 Col.L.Rev. 959, 976), there has in recent years been increasing criticism of the traditional rule by commentators ⁴ and a judicial trend towards its abandonment or modification. ⁵

Significantly, it was dissatisfaction with 'the mechanical formulae of the conflicts of law' (Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 162, 67 S.Ct. 237, 239, 91 L.Ed. 162) which led to judicial departure from similarly inflexible choice of law rules in the field of contracts, grounded, like the torts rule, on the vested rights doctrine. According to those traditional rules, matters bearing upon the execution, interpretation and validity of a contract were determinable by the internal law of the place where the contract was made, while matters connected with their performance were regulated by the internal law of the place where the contract was to be performed. (See Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 141, 19 N.E.2d 992; see, also, Restatement, Conflict of Laws, §§ 332, 358; Goodrich, Conflict of Laws (3d ed., 1949), pp. 342-343.)

In Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99, however, this court abandoned such rules and applied what has been termed the 'center of gravity' or 'grouping of contacts' theory of the conflict of laws. 'Under this theory,' we declared in the Auten case, 'the courts, instead of regarding as conclusive the parties' intention or the place of making or performance, lay emphasis rather upon the law of the place 'which has the most significant contacts with the matter in dispute" (308 N.Y. at p. 160, 124 N.E.2d, at pp. 101-102). The 'center of gravity' rule of Auten has not only been applied in other cases in this State, ⁶ as well as in other jurisdictions, ⁷ but has supplanted the prior rigid and set contract rules in the most current draft of the Restatement of Conflict of Laws. (See Restatement, Second, Conflict of Laws, § 332b (Tentative Draft No. 6, 1960).)

Realization of the unjust and anomalous results which may ensue from application of the traditional rule in tort cases also prompted judicial search for a more satisfactory alternative in that area. In the much discussed case of Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526, this court declined to apply the law of the place of the tort as respects the issue of the quantum of the recovery in a death action arising out of an airplane crash, where the decedent had been a New York resident and his relationship with the defendant airline had originated in this State. In his opinion for the court, Chief Judge DESMOND described, with force and logic, the shortcomings of the traditional rule (9 N.Y.2d, at p. 39, 211 N.Y.S.2d, at p. 135, 172 N.E.2d, at p. 527):

'Modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. * * * An air traveler from New York may in a flight of a few hours' duration pass through * * * commonwealths (limiting death damage awards). His plane may meet with disaster in a State he never intended to cross but into which the plane has flown because of bad weather or other unexpected developments, or an airplane's catastrophic descent may begin in one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State's people against unfair and anachronistic treatment of the lawsuits which result from these disasters.'

The emphasis in Kilberg was plainly that the merely fortuitous circumstance that the wrong and injury occurred in Massachusetts did not give that State a controlling concern or interest in the amount of the tort recovery as against the competing interest of New York in providing its residents or users of transportation facilities there originating with full compensation for wrongful death. Although the Kilberg case did not expressly adopt the 'center of gravity' theory, its weighing of the contacts or interests of the respective jurisdictions to determine their bearing on the issue of the extent of the recovery is consistent with that approach. (See Leflar, Conflict of Laws, 1961 Ann.Sur.Amer.Laws, 29, 45.)

The same judicial disposition is also reflected in a variety of other decisions, some of recent date, others of earlier origin, relating to workmen's compensation, ⁸ tortious occurrences arising out of a contract, ⁹ issues affecting the survival of a tort right of action ¹⁰ and intrafamilial immunity from tort ¹¹ and situations involving a form of statutory liability. ¹² These numerous cases differ in many ways but they are all similar in two important respects. First, by one rationale or another, they rejected the inexorable application of the law of the place of the tort where that place has no reasonable or relevant interest in the particular issue involved. And, second, in each of these cases the courts, after examining the particular circumstances presented, applied the law of some jurisdiction other than the place of the tort because it had a more compelling interest in the application of its law to the legal issue involved.

The 'center of gravity' or 'grouping of contacts' doctrine adopted by this court in conflicts cases involving contracts impresses us as likewise affording the appropriate approach for accommodating the competing interests in tort cases with multi-State contacts. Justice, fairness and 'the best practical result' (...