First Nat. Bank in Fort Collins v. Rostek

• Decision Date: 24 September 1973
• Docket Number: No. C--317,C--317
• Citation: 514 P.2d 314,182 Colo. 437
• Parties: , 62 A.L.R.3d 1066 FIRST NATIONAL BANK IN FORT COLLINS, as guardian of Mickey Allen Hornbacher, et al., Petitioner, v. Shirley L. ROSTEK, Administratrix of the Estate of John E. Rostek, Respondent.
• Court: Colorado Supreme Court

Page 314

514 P.2d 314

182 Colo. 437, 62 A.L.R.3d 1066

FIRST NATIONAL BANK IN FORT COLLINS, as guardian of Mickey

Allen Hornbacher, et al., Petitioner, v. Shirley L. ROSTEK, Administratrix of the Estate of John E.

Rostek, Respondent.

No. C--317.

Supreme Court of Colorado, En Banc.

Sept. 24, 1973.

The Law Offices of Daniel S. Hoffman; by Gene M. Hoffman, of counsel, Denver, for petitioner.

Hill & Hill, Fort Collins, Blunk, Johnson & Allspach, Denver, for respondent.

PRINGLE, Chief Justice.

This case arises out of events surrounding a tragic airplane accident which took the lives of Carol Hardin Rostek and her husband, John E. Rostek. The First National Bank in Fort Collins, plaintiff below (petitioner herein), is the guardian of the natural children of Carol Hardin Rostek. The respondent is the administratrix of the estate of John E. Rostek.

Pursuant to 1967 Perm.Supp., C.R.S.1963, 41--1--3, petitioner filed a wrongful death action in Colorado district court alleging that negligent operation of the aircraft on the part of John E. Rostek caused the accident and the ensuing death of his guest-passenger, Carol Hardin Rostek.

The respondent filed a motion for summary judgment alleging the rights of the parties are governed by the South Dakota Aircraft Guest Statute, S.D.C.L.1967, 50--13--15. This South Dakota statute requires proof by the guest-passenger of Willful or Wanton misconduct on the part of an operator of an aircraft.

For purposes of the summary judgment motion the parties stipulated that At most the petitioner's evidence would show simple negligence on the part of John Rostek. The parties also stipulated that John and Carol Rostek were both citizens and residents of the state of Colorado, and that Carol Rostek's natural children, who are her sole heirs at law, resided with her in Colorado. With respect to the events in question, the stipulation stated:

'That on or about December 29, 1969, John E. Rostek, deceased, accompanied by his wife, Carol Hardin Rostek, deceased, took off from Colorado enroute to Iowa and Vermillion, South Dakota. That the Rosteks intended to remain in Vermillion, South Dakota, overnight, but after ascertaining that a board of directors meeting could not be held that evening decided to return to Fort Collins the same night.

'That the Rosteks took off in their twin engine plane that evening from Harold Davidson Airport, Vermillion, South Dakota. That two days later, the plane was found approximately 500 feet from the end of the runway.'

The trial court granted the respondent's motion for summary judgment and held:

'. . . The parties have agreed that if the trial court is to adopt the law of the place of the wrong, lex loci, the case must be dismissed. If the Court is to adopt the law in which the trial is held, lex fori, the motion must be denied.

'The law in Colorado is that the claim is governed by lex loci delicti, rather than lex fori. Pando v. Jasper (133 Colo. 321), 295 P.2d 229 and Bannowsky v. Krauser, (D.C.), 294 F.Supp. 1204.'

The petitioner then petitioned this court, pursuant to C.A.R. 50, for a writ of certiorari to review the summary judgment of the trial court. We granted certiorari for the sole purpose of determining if Colorado courts are compelled to apply the doctrine of Lex loci delicti (the law of the place of the wrong), under the facts and circumstances of this case.

I.

A brief review of Colorado case law convinces us that the issue presented in this case has in reality never been previously decided by this court, and that the doctrine of Lex loci delicti appears in Colorado law more by default than by design.

In both Atchison T. & S.F.R. Co. v. Betts, 10 Colo. 431, 15 P. 821 (New Mexico law applied where a suit was brought for the killing of plaintiff's mule by defendant railroad in New Mexico) and Denver & R.G.R. Co. v. Warring, 37 Colo. 122, 86 P. 305 (New Mexico law applied to determine if legal action by a personal representative of deceased was proper when accident occurred in New Mexico), the question of whether any rule other than Lex loci delicti should be applied was never raised. In both cases the court applied the law of the place of the wrong without recognition of the choice of law issue and without a discussion of any choice of law doctrine. This is, of course, typical of cases from all jurisdictions in the days when A.T. & S.F. and D. & R.G.R. were decided. Lex loci delicti was accepted doctrine then and none challenged it or gave any thought to its justification or its fairness.

The only Colorado case which expressly mentions the doctrine of Lex loci delicti is Pando v. Jasper, 133 Colo. 321, 295 P.2d 229, cited by the trial court in the instant case to support its summary judgment. In Pando an accident had occurred in Kansas and the suit was brought in Colorado. In the process of addressing the issue of whether the Kansas guest statute had to be proven like other facts at trial, the court assumed that the claim was governed generally by Kansas law under the doctrine of Lex loci delicti. This reference to Lex loci delicti is unquestionably Dicta, and the court reached this conclusion without citing any previous Colorado cases as precedent. Further, in Pando, as in previous cases where the court applied the law of the place of the wrong, no issue was raised concerning the applicability or scope of the doctrine of Lex loci delicti or any other choice of law rule.

Thus, this court in effect has not previously been confronted with the issue of the propriety and the justice of the doctrine of Lex loci delicti, nor has this court previously held that such a broad rule unfailingly applies in all multistate controversies. ¹ We conclude, therefore, that Stare decisis does not compel this court to apply the rule of Lex loci delicti without regard to the facts and circumstances in the particular case. Instead, this court must decide, as a matter of first impression, whether the broad rule of Lex loci delicti should be adopted and applied to this case, or whether a more flexible choice of law rule should control.

II.

When the doctrine of Lex loci delicti was first established in the mid-nineteenth century, conditions were such that people only occasionally crossed state boundaries. Under those circumstances, there was legitimacy in a rule which presumed that persons changing jurisdictions would be aware of the different duties and obligations they were incurring when they made the interstate journey. Further, even if persons making these occasional journeys into neighboring states were not actually aware of the changing duties and responsibilities, enforcing the laws of the jurisdiction in which they were wronged was justified because of the 'vested rights' doctrine that was prevalent and widely accepted at that time. See Page, Conflict of Law Problems in Automobile Accidents, 1943 Wis.L.Rev 145, 150. Thus, the rule of Lex loci delicti was originally viewed as a practical formula by which individuals could govern their actions in accordance with prevailing attitudes and customs, providing both uniformity of application and predictability of results.

However, with the industrial revolution and the passage of time, the interstate mobility of the citizenry increased in speed and availability to such an extent that persons no longer regarded an interstate journey as a rare occurrence entailing a significant change of surroundings. As these attitudes and conditions changed, it became clear that the mechanical application of Lex loci delicti to every multistate tort controversy often yielded harsh, unjust results, unrelated to the contemporary interests of the states involved or the realistic expectations of the parties.

To avoid the growing number of undesirable results which strict adherence to Lex loci delicti produced, courts devised various methods of characterizing the issues in the controversy to allow them to deviate from the application of Lex loci delicti without offending Stare decisis. By labeling a matter as 'procedural' rather than 'substantive,' or 'contractual' rather than 'tortious,' courts were able to apply law other than the law of the place of the wrong. See, e.g., Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526; Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944. In the process the courts were, in effect, making a choice of law decision without exposing the real choice influencing factors for objective classification and criticism. This constant search for a result which would comport with reason and justice made it evident by the mid-twentieth century that the doctrine of Lex loci delicti no longer provided the high degree of predictability and uniformity which were considered its primary virtues.

The questionable viability of the Lex loci delicti rule in today's society has been recognized by courts and commentators alike. In the last ten years, while several states have retained adherence to the broad Lex loci delicti rule, ² a greater number of jurisdictions have abandoned or rejected Lex loci delicti in favor of a more flexible and rational choice of law approach in multistate tort cases. ³ The majority of those cases rejecting the Lex loci delicti rule have involved the application of host-guest statutes or the question of interspousal liability for injuries received in automobile or airplane accidents. Additionally, the overwhelming majority of commentators are opposed to the mechanical application of the place of wrong rule, ⁴ largely for the reasons previously discussed.

The rationale of the cases rejecting Lex loci delicti, the views of eminent authorities in the field of tort law, and our own observations and experience convince us a more flexible and rational approach than Lex loci delicti affords is necessary. We fully appreciate the arguments made by the defendant that Lex loci delicti retains some predictability of result and ease of application by courts....