Module 2: Choice of Law in Torts

The traditional rule applies the law of the place of the wrong — where the injury occurred — as a single, bright-line factor, regardless of the parties’ domicile or any other connection to the case.

Alabama Great Southern Railroad Co. v. Carroll, 97 Ala. 126 (1892), is the classic illustration of the rule applied to its logical, mechanical conclusion. A railroad brakeman employed and based in Alabama was injured when a defective link between train cars — a link that had actually been negligently inspected and coupled back in Alabama — finally failed and caused his injury just after the train crossed into Mississippi. Nearly every fact connecting the case to any state pointed to Alabama: the employment relationship, the negligent conduct, the parties’ own domicile. But because Mississippi was where the injury itself technically occurred, the Alabama Supreme Court held Mississippi law governed — including a Mississippi rule barring the claim entirely under the fellow-servant doctrine, which Alabama law had already abolished for railroad workers. Carroll shows lex loci delicti operating exactly as designed: a single, bright-line factor applied without regard to which state actually had the more meaningful policy stake in the outcome.

Example. Two out-of-state friends passing through a state have an accident there. Under lex loci delicti, that state’s law governs, even though neither party has any other connection to it at all.

Critics argue the traditional rule can produce arbitrary results, applying a state’s law based purely on the fortuitous location of an injury, without regard to whether that state actually has any real policy interest in the outcome.

The most influential of these critics was Brainerd Currie, a law professor whose series of law review articles beginning in the late 1950s argued that courts should abandon fixed geographic rules like lex loci delicti entirely in favor of directly asking which state’s underlying policy is actually served by applying its law to the specific facts at hand — the analytical approach this module later covers as governmental interest analysis. Currie’s core insight was that a choice-of-law rule fixated on a single geographic contact (like where an injury happened) mistakes the map for the territory: a state’s tort law exists to serve real policy goals (protecting resident defendants from excessive liability, or ensuring resident plaintiffs get full compensation), and those goals are either genuinely implicated by a given case’s facts or they aren’t — a question the traditional rule’s geographic fixation never actually asks. Currie’s work is widely credited with triggering the broader mid-twentieth-century shift away from the traditional rule that the rest of this module explores.

Example. A guest statute meant to protect a state’s own resident drivers gets mechanically applied to two out-of-state parties who happened to have their accident there — serving no real protective purpose at all.

The Second Restatement’s most significant relationship test weighs multiple contacts together: the place of injury, the place of conduct, the parties’ domicile, and where their relationship is centered.

This approach’s landmark case is Babcock v. Jackson, 12 N.Y.2d 473 (1963). Georgia Babcock and Lynn Jackson, both domiciled in New York, drove together across the border for a weekend trip to Ontario, Canada, where Jackson lost control of the car and Babcock was seriously injured. Ontario had a guest statute barring exactly this kind of claim — a passenger suing her host driver for ordinary negligence — while New York had no such bar. Under lex loci delicti, Ontario law would have mechanically controlled and defeated Babcock’s claim entirely, purely because the accident happened to occur there. Judge Stanley Fuld’s opinion for the New York Court of Appeals rejected that result, reasoning that New York had the far more significant relationship to the parties and the dispute — both women were New York domiciliaries, their relationship as friends was centered in New York, and the trip itself originated and was meant to end there, while Ontario’s only real connection was the fortuitous location of the crash. Babcock is widely credited with launching the modern choice-of-law revolution nationally, and its basic multi-factor structure became the template for the Second Restatement’s test this section teaches.

Example. When both parties share the same domicile and their relationship is centered there, that state’s stronger, non-coincidental contacts can outweigh another state’s purely fortuitous connection as the place of injury.

This approach asks which state’s law is actually implicated by a genuine policy interest in the specific facts. A true conflict exists when multiple states each have a real, legitimate interest; a false conflict exists when only one does.

Example. A guest statute designed to protect a state’s own domiciliaries isn’t really implicated when neither party in the lawsuit is domiciled there — a false conflict, resolved by applying the one genuinely interested state’s law instead.

Reich v. Purcell, 67 Cal. 2d 551 (1967), shows Currie’s framework applied by a state court, and specifically illustrates a genuinely tricky wrinkle: the interested states can shift depending on which issue is being analyzed. A car accident in Missouri killed an Ohio-domiciled mother and injured her family, who were relocating to California at the time; the defendant driver was domiciled in California. Missouri, the accident site, had no real interest in the case at all — none of the parties were Missouri domiciliaries, so Missouri’s law was simply irrelevant despite being where the crash occurred. But between Ohio and California, the California Supreme Court (per Chief Justice Traynor) found Ohio had the more significant interest specifically on the wrongful-death damages question, since Ohio’s law (capping damages) existed to protect Ohio estates and beneficiaries — even though the family was actively in the process of moving to California when the accident occurred. The case is a useful reminder that interest analysis is genuinely fact-sensitive and can produce results that don’t simply track a party’s current or eventual domicile.

Depecage lets different states’ laws govern different issues within the same case — for example, one state’s law on liability and a different state’s law on damages — rather than forcing one state’s law to control everything.

In re Air Crash Disaster Near Chicago, Illinois, on May 25, 1979, 644 F.2d 594 (7th Cir. 1981), shows depecage operating at real scale. Following the crash of American Airlines Flight 191 — which killed everyone aboard and remains the deadliest aviation disaster in U.S. history — the resulting wrongful-death litigation involved victims domiciled across dozens of different states, all injured in a single event in Illinois. The Seventh Circuit held that a strict single-state choice-of-law rule made little sense for a case this sprawling: it approved applying Illinois law uniformly to the liability question (since the conduct and crash both occurred there, giving Illinois the strongest interest in regulating airline safety conduct within its own airspace), while allowing each individual plaintiff’s own domicile state’s law to govern the damages available to that specific plaintiff’s estate — since damages rules exist to serve each state’s own interest in compensating its own domiciliaries, an interest that varies plaintiff by plaintiff. The case demonstrates depecage’s real practical value in exactly the kind of mass tort litigation where forcing one single state’s law to govern every issue for every party would ignore how differently each issue actually implicates different states’ interests.

Example. A court might apply the place-of-injury state’s law to determine whether the defendant was negligent, while applying the parties’ shared domicile state’s law to determine the available damages.