You may remember that I posted the Choice of Law question a while back and there was never a real answer with authority posted. Well, yes I opened a bookand here is what I found. I OCR'd directlty from Witken, Latest Edition, Torts, Vo. 5, Page 331, Section 193, Injuries to Torts and Property.
Witken, Section 193, Injuries to Torts and Property in blue Text below: - Also this will be posted at the www.shortfatattorney.com Message Board under Choice of Law for future reference.
a) [§193] Injuries to Person or Property.
(1) Personal Injuries. Under the Restatement, the law of the state where a personal injury occurred determines the rights and liabilities of the parties, "unless, with respect to the particular issue, some other state has a more significant relationship . . to the occurrence and the parties." (Rest.2d, Conflict of Laws § 146; see 16 Am.Jur.2d (2002 ed.), Conflict of Laws §136; 77 A.L.R.2d 1266 [what is place of tort causing personal injury for purpose of principle of conflict of laws that law of place of tort governs].)
In the ordinary case, conduct and injury occur in the same state, and these two elements usually call for application of the law of that state. (Rest.2d, Conflict of Laws § 146, Comment d.) But when they occur in different states, a distinction is made: (a) The law of the state of injury will usually be applied, because persons who cause injury in a state should not escape liability under that state's law, and the place of injury is readily ascertainable. (b) Where, however, the purpose of the law is to punish conduct, the state where the conduct occurred may be more important; and
331
Bob Lally wrote:
Hi List Mates,
I have the following choice of law question,
The client was injured getting off a plane in Washington State. There is concurrent jurisdiction in California - since trip started here, and in Washington - place where client fell getting off plane due to a poorly secured final step on the bottom of the stair leading from the plane. Unfortunately, the client died due to unrelated causes. Washington allows the action to be prosecuted following the death of the claimant and its survival statute allows all items of damage to be recovered, including pain and suffering, unlike California.
It is to the advantage of the client's estate to pursue the action under Washington law. It is inconvenient, however, since the executor of the estate is in Sacramento, and, frankly, I would prefer continuing to handle the case as a California attorney. The issue is choice of law. Can the case be filled in California State Court, and will the court apply Washington law ? The argument on the other side will be since the action is filed in California and since California has jurisdiction, the CA statute should be applied. The question is, is there a good shot at applying the more favorable Washington survival statute in a California State Court action?
[ There are other issues. If I file in State Court the airline will possibly try to remove to Federal Court contending diversity. I will probably be able to remand since the airline has a physical presence in California. I obviously don't want to be in Federal Court, but I am not be concerned with that now.]
Thank you all for your input in advance. I appreciate all the input that I can get.
Bob Lally
J. Robert Lally, Esq.
David Allen and Associates
7400 Shoreline Drive Suite 1
Stockton, Ca. 95219
(209) 473-4800
Cell (916) 955-6005
fax(209) 478-5443
Work Email blally@davidallenlaw.com
Travel Email kmfbob@yahoo.com
Website www.davidallenlaw.com
