Chambers v. Dakotah Charter, Inc.

performance, problem with his it had discharged him before the time for his

Tech expired prescrip-

improvement on the first Therefore, agree I the dis- plan.

tive failed statu-

sent that Tech to follow

tory negotiated procedures and we and pur- reverse and remand for that

should

pose. CHAMBERS and Glenn

Charlotte Chambers,

Norman Plaintiffs Appellants, CHARTER, INC.,

DAKOTAH a South corporation, Defendant Appellee.

Nos. 17404.

Supreme Court of South Dakota.

Argued Sept.

Decided June Jackson, Sogn Lynn,

Jon C. Shultz & Lebrun, Falls, plaintiffs for Sioux pellants. Mickelson,

John E. and Mark Le- Simko Woods, Fuller, gal Intern of Shultz & Smith, Falls, Sioux for defendant and pellee.

ZINTER, Judge. Circuit Plaintiffs, Charlotte and Glenn Chambers (Charlotte Chambers), appeal from a Defendant, jury verdict favor of Dako- Charter, (Dakotah Charter). tah Inc. (1), questions presented appeal on whether Dakota courts should con- choice rule of tinue to follow the of laws (law place lex loci delecti (2), percentage wrong) in multi-state tort actions and of fault that is to the attributed applied the trial court plaintiff’s whether should have conduct. Id. Under South Da law, the Missouri law of contributorily negligent plain kota a in an action between Dakota domicili- South damages propor tiff’s are also reduced in arising aries from an*accident on a bus in plaintiff’s tion to the amount of the contrib Missouri. The trial court declined to follow negligence. utory contributorily negli A delecti, lex loci and it the South not, however, gent plaintiff may recover comparative negligence. Dakota law of anything in South if plaintiff’s Dakota We affirm. negligence slight compari is more than negligence son with the of the defendant. May

In thirty-four Charlotte and SDCL 20-9-2.1 other South Dakota residents chartered a Charter, bus in Sioux Falls from Dakotah a upon Based special three concurrenc corporation. purpose Owen, (S.D. ines Owen v. N.W.2d trip was to attend a Tae Kwon Do 1989), the trial court declined to follow the tournament in Arkansas. enWhile route rule apply traditional of lex loci delicti and Arkansas, from South Dakota to the bus comparative negli the Missouri law of stopped on three occasions for the conve- Instead, gence. the trial court instructed passengers refueling. nience of the jury under South Dakota’s Omaha, stops, The first and second Ne- negligence that, argue statute. Chambers Missouri, Joseph, braska St. occurred ap under lex loci delicti or the modern stop, without incident. On the third in proaches Owen, discussed the trial court Missouri, City, Nevada Charlotte fell on the given should have proposed Chambers’ in steps in severely the bus and fractured her incorporated struction which Missouri law. ankle. disagree. We person- Chambers commenced actions for Our standard of review of the trial -injury and loss of consortium. Cham- court’s instructions is well established. An negli- bers contended that Dakotah Charter appellant has only the burden to not show gently failed to maintain the interior of the error, given that the instruction inwas but specifi- bus in a safe condition. Charlotte prejudicial also that it was error to the cally contended that she fell on a discarded evidence, effect that under the jury piece candy that was distributed to chil- might probably would have returned a dren Dakotah Charter’s bus driver dur- different if appellant’s verdict instruc ing leg trip. the first Dakotah Char- given. Lytle tions had been Morgan, ter allegations denied Chambers’ and also (S.D.1978). 270 N.W.2d contributorily contended that Charlotte was negligent. OF LAWS APPROACH CHOICE

Although contributory negligence Until 1989 this Court has plaintiff longer a no followed an constitutes an absolute unqualified rule of govern lex loci delicti recovery bar to in either South Dakota or Missouri, the choice of laws multi-state comparative negli each state’s tort ac Owen, gence 710; tions. slightly law is N.W.2d different. Missouri is Heide Rohl, pure comparative 250, 194 negligence mann v. 86 S.D. state. N.W.2d 164 Gus Benda, (Mo.1983). Although formally S.W.2d we did not tafson law, plaintiff Owen, Under Missouri if a is deter abandon lex loci delecti in the “ma contributorily negligent mined to any jority” opinion, by Morgan, written J. and degree, plaintiff may recover, Wuest, C.J., still concurred in but took the first plaintiff’s damages step are reduced that direction when it provides: contributory 1. SDCL 20-9-2 negligence plaintiff slight brought damages comparison negligence In all actions recover for injuries defendant, person case, property to a damages to his caused but in such another, negligence the fact that the proportion shall be reduced in to the amount plaintiff may guilty contributory have been plaintiffs contributory negligence. recovery shall not bar a when the great figures public policy exception to the rule “to avoid as Justice HOLMES ... pub- repugnant that are and Professor Beale ... the vested applications rights long 444 N.W.2d doctrine has since dis- policy lic of our state.” been remaining credited the three because it fails to take account at in in underlying policy of this Court concurred of considerations members result, they by special evaluating significance concur- to voted be ascribed Owen “[j]oin majority juris- of circumstance that an act had a rence to vast foreign determining rights situs in the archa- dictions which [have] abolish[ed] and liabilities which arise out of that act. rigid ic and rule of lex loci in favor of an rights theory’, ‘The vice of vested approach gives flexibility and ad- which stated, aptly has been ‘is that it affects respon- of issues in a dresses conflicts laws upon generali- to decide concrete cases equitable manner.” at 714- sible Id. practical ties which do not state the (Miller, J., concurring specially, joined 715 involved’_ particu- siderations More Sabers, JJ.). Henderson torts, larly, theory ig- as reasons for abandonment of the rule jurisdictions nores the interest which oth- by present well articulated Chief Jus- were may er than that where the tort occurred 715, tice Miller in 444 N.W.2d at our particular have the resolution of is- adoption of lex loci delecti Heidemann that, very sues. It is for this reason a further limited and stare decisis warrant despite advantages certainty, of ease abandonment of discussion of reasons for application predictability of which it the traditional rule. ..., years affords there has in recent judge Lex loci delecti is a made rule increasing been criticism of the tradition- law that is based on the doctrine of vested judicial al rule commentators and a Jackson, rights. In 12 N.Y.2d Babcock v. trend towards its abandonment or modifi- 473, 743, 746, 279, 240 191 N.E.2d N.Y.S.2d (citations omitted). cation. (1963), many 281 the case that led courts to Twenty years ago adopted we lex loci delecti, lex loci the New York abandon Heidemann, delecti 194 N.W.2d at 169. Appeals explained that: Court At that time we noted that lex loci delecti rule, The traditional choice of law embod- prevailing rule. at Al- Id. original ied Con- though had Babcock been decided at (§ 384), recently flict of Laws and until time, adopt we declined to a modern unquestioningly in this court followed satisfactory until a substitute was ..., rights has that the substantive been developed because we noted “considerable arising and liabilities out a tortious inconsistency” applica- confusion and are determinable the law occurrence tion of modern rules. Id. at 169. We place of the tort.... It had its observed, however, that the condition was conceptual foundation the vested any perhaps characteristic of transitional doctrine, namely, right rights that a changing period law era. Id. foreign its cre- recover for a tort owes jurisdiction approach ation to the law of the where The transition to a new depends Today since occurred and for its has continued Heidemann. solely only fifteen states still retain the tradition existence and extent on such rule,2 Although espoused by majority such and the of states which law.... 609, (Ala. (1963); Algie Algie, Sappington, S.E.2d v. 2. See Powell v. 495 So.2d 569 N.C. 129 288 488, 1986); Smoot, 103, Friday (1973); v. Del. 211 A.2d 58 261 S.C. 198 S.E.2d 529 Winters v. Indus., (1965); Sargent Inc. v. Delta Air (Tenn.1972); 594 Maxey, 481 S.W.2d 755 Goldman Lines, 91, (1983); Ling 108 v. 251 Ga. 303 S.E.2d 299, (1961); Beaudry, 122 Vt. 170 A.2d 636 629, (1985); Liquors, P.2d Jan's 237 Kan. 703 731 370, Comm.W., Frye 231 Va. 345 S.E.2d 267 120, Connor, Md. A.2d 1207 Hattch v. 295 453 (1986); Psychiatric Hospital, Vest v. St. Albans Co., (1983); Railway 176 Haker v. Southwestern 228, Inc., (1989); W.Va. 387 S.E.2d 282 182 364, (1978); Tab Construc- Mont. 578 P.2d 724 Housen, (Wyo.), cert. de Duke v. 589 P.2d 334 Court, Eighth Judicial District 83 Nev. tion Co. v. 364, 863, 132, nied, 444 U.S. 100 S.Ct. 62 L.Ed.2d 86 Smalley, 432 P.2d 90 Zamora v. (1979). 45, Lee, (1961); Shaw v. N.M. 358 P.2d 362 approach today Kramer, have chosen a new have ars than ever before. Re- significant relationship Law, some version thinking Choice 90 Colum.L.Rev. Smith, approach. generally Choice Nevertheless, of the mod- States, Hastings Law in the United L.J. approaches, generally ern the three most (1987); Kay, Theory Practice: into sig- accepted courts are: the “most Courts, 34 Choice Mercer Law relationship” approach nificant which arose Furthermore, L.Rev. courts Babcock, out 240 N.Y.S.2d inconsistency have started to overcome the N.E.2d and has evolved into the Re- Heidemann, we in cases noted at least (Second) statement of Conflict of Laws such as this one which involves contrib- (1971); (2) “governmental interest” Because utory/comparative negligence.3 a proach originated by Professor Brainerd ap- discernible trend toward one modern and Purcell, Currie in Reich v. 67 proach developed among has states which 31, 63 Cal.Rptr. Cal.2d 432 P.2d 727 rule have abandoned traditional and (1967); and, (3) “choice-influencing con- precedent developing because substantial is approach siderations” by refined Professor approaches, join under now the modern we Leflar. majority the clear lex abandon loci by The favoritism shown courts for some govern analysis delecti to choice of laws form relationship ap- multi-state tort actions. Heidemann appears gener- to have occurred for contrary other cases to are modified as specific Generally, reasons. provided. hereinafter adoption (Second) mere of the Restatement Having lex abolished loci delecti as South development has restricted govern- rule, Dakota’s of law turn choice we choice-influencing mental interest and the adoption appropriate of an modern Smith, approaches. consideration supra, proach. The selection of the mod- at 1170. That trend has occurred because approach ern subject has been the of much one all but of the modern considerations discussion scholars and courts. See government used interest and choice- Although 444 N.W.2d at 714 n. 2. influencing approaches are explicitly recog- expressed three of this Court members a (Second), nized Restatement and the preference in Owen for the “choice-influ- (the consideration, omitted better law encing approach considerations” refined factor), can be considered under 6 of the § Leflar,4 Professor A. left Robert we (Second). result, Restatement As a analysis. Subsequent matter for further government choice-influencing interest and analysis by provided thoughtful others has approaches consideration have been rele- insight adoption appropriate into the of an gated secondary juris- role conflicts Thatcher, approach. modern Choice prudence. Id. Law in Multi-State Tort Actions after Owen v. The Things Change Owen: Less government The interest and the choice- ..., (1989-1990). 35 S.D.L.Rev. 372 influencing approaches consideration have subject specific also been criticism. approaches No less than six cur- governmental pure The approach interest rent use in one or more combinations.5 has rejects criticized because it diversity part This has been all been caused in disagreement jurisdiction-selection among purposes. substantial rules for all scholars Posnak, questions about Choice underlying fundamental Law—Rules Analy- vs. approach. each Unfortunately, there A More Marriage is sis: Workable than the probably among (Second) less consensus Restatement; schol- A Very Well-Cur- 3. See note survey 5.For the choice of law theories infra. Smith, currently jurisdictions in use in all see See, Leflar, Choice-Influencing Considerations States, Law in Choice the United Hastings 38 Law, (1966); N.Y.U.L.Rev. Conflicts (1987); Kozyris Symeonides, L.J. 1041 & Choice Leflar, Law: More on Choice-Influenc- Conflicts Law in the American Courts in 1989: An of Overview, Considerations, ing (1966); 54 Calif.L.Rev. 1584 Am.J.Comp.L. Leflar, Felix, McDougal R. American L. & R. (4th 1986). Law ed. Conflicts Mer- Approach, 40 believed that was do more vied Over Reese unwise to than Leflar also n. 37 It has adopt rules, cer L.Rev. sig- broad flexible most pro- decidedly criticized its been because formulation, relationship nificant preference rejected forum has been guide impeding would courts without commentators, including courts and progress. Reese, structive Conflict of approach. Kay, committed those Second, Laws and supra, Although at 551. the interest 679, 699, Contemp. Law & Probs. proach probably remains the dominant Kay, at supra, compro- this academics, theory among its choice mise led to an approach has which some scholars, among slipping hold is new general useless, have said is so toas Kramer, 278-279, supra, at and it has even those critics admit will benefit arise support received little from the courts.6 adoption from any that is rule also choice-influencing-considerations ap- Kramer, by other supra, states. comparatively lit- proach has also received at 321-322. recognition by courts.7 This oc- tle has because, part except curred for its “bet- states, Most which have abandoned factor, law” there is not much ter differ- delecti, lex apply loci now some form of the approach Re- ence between this and the significant relationship approach.8 Be (Second). Posnak, supra, at 887 statement (Second) cause the Restatement contains Furthermore, the factor n. 96. better law generally most of accepted poli the modern of E. subject has been the much criticism. cy rules, considerations and because has 2.11 Hay, & P. Of Laws Scoles Conflict § prevailing approach among become the (1984); Korn, The Revolu- Choice-of-Law precedent because courts and the most will 722, A 958 Critique, tion: 83 Colum.L.Rev. develop approach, adopt under that we now (1983). significant relationship approach the most (Second) compro- govern The is multi-state tort conflicts. Restatement a rules, cer- mise. It contains which aid in tainty application, general- of as well as the DETERMINATION OF THE APPRO- recognized ly policy considerations which PRIATE COMPARATIVE NEG- Al- to be considered with the rules. LIGENCE LAW

though principal of criticism the Restate- (Second) Under most relationship ment been that it has not the has results, always approach; led to consistent its authors 632, O’Connor, only adopted The have 6. courts which this O'Connor v. 201 Conn. 519 A.2d Chem., Co., proach (1986); Nepera Bishop Specialty Inc. are: v. Sea-Land 13 v. Florida Paint Service, Inc., (D.C.Cir.1986); Pischke, (Fla.1980); 688 794 F.2d Wallis So.2d 999 v. 389 lohnson Co., 622, 397, (1985); Ingersoll v. Mrs. 261 Ark. Smith’s Pie 550 S.W.2d 700 P.2d 108 Idaho 19 v. Purcell, 551, (1977); 42, Klein, (1970); 453 Reich 67 63 v. Cal.2d 46 I11.2d 262 N.E.2d Hub 593 31, (1967); Cal.Rptr. lagers Roy- Co., Greeson, 727 Mfg. 432 P.2d v. Inc. v. bard 515 N.E.2d 1071 Co., (La.1973); Indemnity (Ind.1987); Bemis, 276 So.2d 309 Fuerste v. 156 N.W.2d 831 226, Sarahson, 1968); v. N.J. (Iowa Co., Melik 49 229 A.2d 625 Forge Adams v. 443 Buffalo 563, (1967); Shaposka, Cipolla 267 v. 439 Pa. (Me.1982); Doug A.2d 932 Cohen v. McDonnell (1970). 327, A.2d 854 (1983); Corp, las Mass. 450 581 389 N.E.2d (Miss.1968); Craft, Mitchell v. 211 So.2d 509 only Dixon, The have (Mo.1969); 7. courts which this Kennedy v. 439 S.W.2d 173 Peters, 653, Silva, 645, are: Peters v. 63 Haw. 634 Harper v. 224 Neb. N.W.2d 399 826 Saari, (1981); Jackson, 473, (1987); P.2d 586 v. Minn. Milkovich 295 v. Babcock 12 N.Y.2d 240 Clark, 155, (1973); 743, (1963); Clark 107 203 N.W.2d 408 v. 191 N.Y.S.2d N.E.2d 279 Issendorf 351, (1966); Pardey Olson, (N.D.1972); N.H. 222 A.2d 205 v. Boule- Morgan v. N.W.2d 750 v. 194 Club, (R.I.1986); 339, Co., 463, vard A.2d Mfg. Billiard 518 1349 Biro 15 Ohio 15 OBR St.3d 578, Zellmer, (1984); Gooden, 664 Heath v. 35 Wis.2d 151 N.W.2d v. 474 N.E.2d 286 Brickner 525 Thomas, (Okla.1974); P.2d Erwin v. 264 Or. 632 454, Collins, (1973); 494 v. 506 P.2d Gutierrez (Tex.1979); Armstrong Armstrong, v. Fors v. 441 P.2d 583 S.W.2d man, Forsman (Alaska Schwartz, (Utah 1989); 1968); Ariz. P.2d 218 Southwell v. Schwartz Inc., (1968); Transp., Widing 447 P.2d First 101 Wash.2d 676 P.2d Natl Bank Rostek, 514 P.2d 182 Colo. negligence. regu-

(1) rights par- of the tive Those rules do not liabilities respect negligent in tort are ties to an issue late determine is with what by the local law the They only regulate determined duct. the amount of which, issue, respect with to that damages contributorily negligent state plain- significant relationship has the may tiff recover. under parties the occurrence and the issue, respect to South Dakota With stated in principles § First, important of the contacts. has all account in to be taken into Contacts principal allegedly conduct which 6 to deter- principles applying § injury caused was distribution of applicable to an issue mine the candy in leg the bus on first include: trip. Missouri contact had no with that injury (a) place where the oc- conduct. Even if could claim Missouri curred, some limited contact with Charter’s (b) place where the conduct caus- alleged premises failure to maintain a safe occurred, ing the distributed, candy after the was Missouri’s domicil, (c) residence, nationality, relatively unimportant contact place place incorporation and issue because parties, business law is not a rule of (d) relationship, if place where the regulate the road nor does it the conduct of parties is centered. any, between companies using highways. bus Missouri’s are to evaluated ac- These contacts Second, domicile, South Dakota was the importance to their cording relative residence, place incorporation place respect particular issue. parties, of business as well as the (Second) of Conflict Laws place relationship parties where the (1971). principles The to be con- § impor- was centered. These contacts 6 are: sidered under § comparative negligence tant to the issue of (1) court, subject A re- constitutional impact because the economic of the law strictions, statutory will follow a di- applied parties will be felt the where re- of its choice rective own state on of Finally, although side. the did occur

law. Missouri, in it occurred in the bus while on directive, there is no the When such journey an interstate from South Dakota to relevant to of factors the choice the merely Arkansas. It was fortuitous that applicable rule of law include slipped pass- while bus Charlotte the (a) ing through the needs of the interstate and in- Missouri. systems, ternational contacts, Considering these the two forum, (b) policies the the relevant factors relevant to a of the appropri- choice (c) policies the relevant of other inter- comparative negligence ate law favor the and the ested states relative interests application South Dakota law. These in states the determination of those policies two factors are the of the interest- issue, particular the and ed states the interests of the relative (d) justified expecta- protection the in determining states the issue. tions, policy state’s clearly This has been ex- (e) policies underlying the basic pressed by legislature in compara- our law, particular field of negligence Although tive statute. Missouri (f) certainty, and uni- predictability a comparative negligence policy, also has result, formity of and significant only South Dakota has the inter- (g) appli- and ease determination est in a determination applied. cation of law to be negligence issue all of the because contacts (Second), supra, § Dakota, South policy are in and Missouri’s

Here, applica application the issue not be furthered its involves would compara- contributory tion of rules South domiciliaries who have no apply the important contact with Missouri.9 Where law of a state that has no interest having in its The applied. rule deeply the “most solu- forum’s interests are change tion such cases is to the forum’s factors, general- under these is affected” Bemis, Fuerste inferior law. fitting that forum’s law should be ly (Iowa 1968). Finally, N.W.2d little Restatement, supra, 6 comment plied. § significance can be to the attached ease of (f) determining applying comparative neg- remaining impor- have little factors ligence law or certainty, predictabili- First, negligence action. tance this nei- ty and uniformity of result. Both states’ sig- Missouri nor Dakota’s laws ther easy laws are apply. to determine and nificantly sys- affect the needs interstate Furthermore, because differences because neither interstate relations tems minor, the law are so there will be few influ- nor automobile movement would be differences in result. Second, protec- either enced law. Considering issue and each justified although im- expectancy, tion of contacts, state’s South Dakota has the relationships, has no portant consensual relationship to the occur importance in this action. Gen- rence and parties. This Court holds legal erally, people do not consider comparative negligence that forum’s sequences may of their or how law conduct should be to a forum’s domicili- applied prior becoming involved an aries who are involved an accident Third, policy ameliorating accident. another state. courts Other have reached consequences harsh of common law the same conclusion each under of the mod contributory negligence rules is furthered approaches.10 ern affirm We the trial both states’ application court’s of South Dakota law argue laws. that Mis- Chambers need not reach the issue raised better, policy is that contention is souri’s Dakotah Charter’s notice of review. Furthermore, if debatable. even Mis- “better,” policy ZINTER, souri’s could be considered Judge, Circuit for AMUNDSON, J., not analysis disqualified. conflicts should be used to considering acknowledged relationship approach It is these law of com —Louisiana factors, many parative negligence applies plain some courts have scholars and to a Louisiana categorized injured Alabama); type as a tiff this of case "false conflict” in auto accident in Mitch (Miss.1968) (Choice- presents Craft, which no conflict of law and which ell v. 211 So.2d 509 influencing-considerations approach Mississip should be decided under law of the state — regard pi specific comparative negligence applies which has the interest without to law to Missis See, any approach. sippi presumptive injured conflict rule residents auto accident in Loui Currie, siana); Bowman, e.g., Essays (Miss. B. on Selected Fells v. 274 So.2d 109 Conflict of Posnak, 1973) (Most supra significant relationship at 873. Never- Laws or choice- theless, apply significant relationship influencing we approach Mississip consideration — approach clarify ambiguity pi comparative negligence to the current in this applies law to dam jurisdiction concerning ages choice of law by Mississippi recoverable resident’s auto approach apply to in multi-state tort cases. accident in Louisiana while rules of the road of apply negligence); the tort state to determine Co., Co., Express DeRemer v. Intermountain See Wallis v. Mrs. Pie 261 Ark. Smith's Pacific (Choice-in (Governmental (Minn.Ct.App.1984) (1977) 353 N.W.2d 694 S.W.2d in- fluencing approach approach comparative negli- considerations terest —Minnesota —Arkansas’ applies gence liability to apportions long law law Minneso which as as injured ta resident plaintiff’s applies in auto accident in South is less than to fault defendant’s Dakota); Freightways v. Consolidated an Arkansas resident’s sustained in an Schwartz Dela., Corp. auto accident in Missouri while Missouri's rules 300 Minn. N.W.2d 665 (Choice-influencing apply questions negligence of the road considerations— vehicle); driving negligence comparative applies Sabell v. Inter- Minnesota law Pacific Co., injured Express Colo.App. mountain 536 P.2d to Minnesota resident in Indiana (1975) (Most significant relationships ap- defendant ta); licensed business in to do Minneso Olson, (N.D. negligence 194 N.W.2d 750 —Colorado’s Isssendorf 1972) (Dominant applies approach to a motor vehicle accident that oc- contacts Da —North contributory applies curred in Iowa as the issue relates to the recov- kota law of Inc., ery damages); Transports, injured DSI North Dakota in auto accident Brown v. resident (Most Minnesota). (La.Ct.App.1986) 496 So.2d 478 WUEST, SABERS, HENDERSON and

JJ., concur.

MILLER, C.J., specially. concurs

MILLER, (concurring spe- Chief Justice

cially).

I am in full accord with and concur opinion.

majority writing in my special

At the time of persuaded I that the “choice- was

influencing approach considerations” time, op-

preferable. Since that study

portunity give it further and con-

sideration, I that “the am now convinced significant relationship” approach is appropriate for Dakota. I

the most if I did not note

would be less than candid fine law

that Professor Thatcher’s review (35 372) played large

article S.D.L.Rev.

part stimulating my re-evaluation on this

topic. quoted

Konrad Adenauer was once as

saying, right “I reserve to be smarter

today yesterday.” than I was So do I! Dakota,

STATE of South Plaintiff Appellee, SICKLER, Sr.,

Shelby G. Defendant Appellant.

No. 17622.

Supreme Court South Dakota. April

Considered on Briefs 1992. July

Decided

Rehearing Aug. Denied

Case Details

Case Name: Chambers v. Dakotah Charter, Inc.

Court Name: South Dakota Supreme Court

Date Published: Jun 3, 1992

Citation: 488 N.W.2d 63

Docket Number: 17400, 17404

Court Abbreviation: S.D.