One of the richest areas of law in philosophy and argument, and sometimes one of the most helpful in achieving success in a case, is the arena of conflict of laws. Many states disagree on the methodology for choosing law, and the history of conflict of laws is a veritable minefield of diverging scholarly and judicial opinions. On October 9, 2003, Judge John Darrah of the Northern District of Illinois Court handed down an important and instructive memorandum and order concerning Illinois’ current stance on the questions raised by conflict of laws.
The memorandum and order by Judge Darrah was in response to a motion by the defendants, Ford and Hertz Rental Car Company, to apply the substantive law of Kentucky at trial.1 In August of 2000, Larry Johnson rented a 2000 Ford Excursion from a Hertz rental location in Illinois for the purpose of driving to Florida for a conference.2 Also with Mr. Johnson were Lynn Johnson, and the Plaintiffs, Lancelot Johnson, Mark Johnson, and Mark Williams.3 On the return trip to their domicile in Illinois, the Excursion was involved in a single car rollover accident.4 Lynn Johnson was driving the Excursion at the time.5 During the rollover, one of the vehicle’s doors opened and the plaintiffs were thrown from the car.6 The accident took place in Kentucky and as a result, Kentucky emergency personnel were called to the scene.7
The Plaintiffs’ claims in Johnson effectively revolve around Hertz’s negligent installation and testing of a replacement valve stem that allegedly caused a tire to deflate, and Ford’s installation of a defective door latch and negligence in regard to the door latch design.8 The Defendants have responded to these allegations by stating that Lynn Johnson was asleep at the wheel, and that furthermore, the plaintiffs were not wearing their seatbelts at the time of the accident.9
The question presented by the Defendants’ motion to apply the substantive law of Kentucky provided four relevant areas of law upon which Kentucky and Illinois conflicted. First, Kentucky is a several liability state in which fault is applied to each defendant based on their respective degrees of fault.10 In contrast, Illinois is a joint and several liability state.11 Next, Kentucky had adopted pure comparative negligence for product liability suits and reduces a plaintiff’s recovery based on the level of comparative fault.12 Illinois differed in that it had adopted a modified comparative fault system. Thirdly, Kentucky law held that tortfeasors who settled claims, even though not defendants in an action, were apportioned fault, while Illinois did not.13 Finally, Kentucky applied a comparative negligence rule to plaintiffs involved in auto accidents who were shown to not have been utilizing their seatbelts. Illinois has not adopted this rule.14
The facts of Johnson are ideal and perhaps even paradigmatic as lending themselves to an illustration on the status of the conflict of laws position of a state. By ultimately utilizing the four conflicting areas of law in Johnson to enhance and illuminate his decision on the motion, Judge Darrah effectively brought a probable judicial outcome and method to light.
The purpose of this comment is to first orient the reader with the rich philosophical history of conflict of laws by examining several of the leading methods over the last century. This discussion will be necessary to fully comprehend the duality of Judge Darrah’s holding in Johnson. Next, Johnson will be discussed in-depth, with a focus on Judge Darrah’s reasoning, reliance on the Second Restatement, and final answer to the motion. This will be followed by an analysis that is focused on the fourth area of conflict in this case, the differing stance of Illinois and Kentucky on the non-use of seatbelts in automobile tort cases, and will conclude with a spotlight on arguing policy in choice of law cases.
The area of conflict of laws has been deemed "baffling" and a "dismal swamp" by at least two leading legal and judicial scholars.15 Thus, it will be of some use to discuss the nature of conflict of laws and some of the resulting theories.
The Constitution does not require any of the fifty states to adopt the same laws, or even to grant a cause of action for the same issue.16 Because of this, situations arise wherein the laws of two states may be implicated for one or more critical issues in the case. For example, if plaintiff is domiciled in state Y, but is injured by defendant’s negligence while traveling in state Z, which state’s liability laws apply? Every court has a set of rules made specifically to decide these disputes. The problem is that many of the courts differ in terms of approach and application, which only magnifies the seriousness of the issue, as many times choice of laws questions are the determining factor in the case.17
The traditional or Common Law approach is a product of the English Courts and the ensuing interpretation in United States Courts.18 This approach is effectively based upon the territorial rights of each individual state to have the laws of their state applied to cases in which the essential relationship that gave rise to the case arose.19 In addition, historically the interest in uniformity and predictability of results were paramount to most other interests.20 For example, for a torts case, the law to be applied was the law of the state in which the injury took place.21 The First Restatement of Conflict of Laws most significantly embodied this approach.22
Though there were many philosophical justifications for the traditional approach, one of the most popular was the "vested rights" approach, influenced most notably by Professor Joseph Beale.23 In conjunction with the interests in uniformity and predictability, the vested rights approach argues that a right to a cause of action is granted when an event takes place within a state that recognizes that particular cause of action.24 The vested rights theory asserts, " A right having been created by the appropriate law, the recognition of its existence should follow everywhere. Thus, an act valid where done cannot be called into question anywhere."25
The traditional approach offers a simple, effective way to produce predictable results and further interstate relations by allowing judges to apply uniform rules.26 Yet, as a consequence of their simplicity, the rules produced by the traditional approach sometimes resulted in unjust and even nonsensical rulings by the courts.27 Furthermore, by characterizing issues in a contract or tort light, or by using certain exceptions or escape devices, judges began to sneak past the rigid territory rules in the First Restatement.28 In using these devices to get to the most just result, judges were effectively accomplishing their goals, but being forced to write opinions that bypassed the real issue.29 This, in turn, led to doubts concerning the traditional approach. By the 1920’s the traditional approach had come under heavy criticism by scholars and judges alike.30
The criticisms against the traditional or First Restatement approach led to a flood of new theories and approaches that eventually culminated in the Second Restatement.31 Perhaps the largest contributor to the new approaches was Professor Brainerd Currie. Currie published a series of papers on his "interest analysis" beginning in the 1950’s and ending in the early 1960’s
In a simple choice of law situation, the forum state will be attempting to discern whose law to apply between its law and a foreign state’s law. Currie suggested that the forum court first look to the purpose of its own law.32 If the application of the forum’s law would further the forum state’s policies, the forum state had an so-called "interest" in applying their own law.33 Next, the forum court would interpret the policies of the other state’s law and decide whether that state was also interested.34 If the other state’s policy was not furthered by the application of the foreign law, Currie declared that it was a false conflict.35 In all false conflicts, the so-called "interested" state’s law was to be applied.36 In cases in which both or all states’ policies would be furthered by applying their own respective laws, there was a true conflict.37
The Second Restatement is a hybrid that encompasses elements of Currie’s interest analysis, the 1934 First Restatement, and some of the views in between these two.38 At its center, the Second Restatement embodies the "most significant relationship" test.39 Thus, the state with the most significant relationship to the suit will have its law applied. Section 6 of the Second Restatement is the axis around which all of the later sections revolve as it states the general rules by which a court ought to determine what state has the most significant relationship to the suit.40 It states:
(1) A court, subject to constitutional restrictions, will follow a statutory of it own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.41
The Second Restatement is constructed as a layered analysis with Section 6 at the lowest layer. With Section 6 in mind, the Restatement moves on in the later sections to deal specifically with tort, contract, and other issues.42 Because Johnson is a tort case, we will limit our discussion to that of the Second Restatement’s dealings with torts. Section 145 gives specific rules, subject to Section 6, for courts to examine in a tort case involving a conflict of laws. Section 145 states:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nation-ality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties in centered.43
It is important to note that the Second Restatement does not advocate "contact counting," in which the state with the most contacts would have their law applied.44 Rather, the Second Restatement allows for courts to take a determinative look at what the most important contacts are, and weigh them accordingly in their analysis.
The Second Restatement, as a hybrid, was intended to solidify the ground for conflict of laws questions. While many states, including Illinois have adopted the Second Restatement, it has done less than hoped for in terms of unifying and creating a standard by which to determine choice of law questions.45 This is the result of the fact that many states have never adopted the Second Restatement and varying views abound as courts and practitioners purport that their varying views are correct, or at least more just, than all the others.
III. Illinois and the Second Restatement
Illinois has adopted the Second Restatement of Conflicts of Law.46 As related above, Illinois is therefore a state that employs Section 6 and the most significant relationship test.47 In a diversity action under Section 1332 of the Federal Rules of Civil Procedure, a district court applies the law of state in which it sits.48 Additionally, Section 145 of the Second Restatement informs the court that the local law of the state in which the injury occurred is of importance to the most significant relationship test.49 Consequently, "the local law of the State where the injury occurred should determine the rights and liabilities of the parties, unless Illinois has a more significant relationship with the occurrence and with the parties, in which case the law of Illinois should apply."50 Finally, the Second Restatement, and therefore Illinois, adopts the principle of depecage, which allows the court to examine each issue in a case separately under the pertinent choice of law rules.51
IV. Johnson v. Ford Motor Company, Inc.: The Court’s Holding and Rationale
In his decision on the defendants’ motion to apply the substantive law of Kentucky, Judge Darrah first acknowledged the controlling law of Illinois as prescribed by the Second Restatement and as set out above.52 Insofar as the Second Restatement is structured as an analytical pyramid, Judge Darrah begins his analysis with the four components of Second Restatement Section 145(2)(a)-(d), and concludes with an analysis of the case under the pertinent portions of Section 6.53
Section 145(2)(a) is a remnant of territorial or First Restatement analysis, and deals solely with the place of the injury. The facts in Johnson relate that the accident occurred in Kentucky.54 Yet, Judge Darrah finds that if the place of injury was fortuitous, and the case concerns only issues of recovery, the place of injury is not a significant factor in determining which state has the most significant relationship.55 Fundamentally, the paradigm of this analysis takes place in cases in which the injury could not have been predicted to take place in any state, and only took place in any given state because of chance.56 The justification for taking the place where the injury occurred into account is that the state in which the injury occurred generally has a high interest in having its law applied.57 Some of the reasons the state where the injury occurred has an interest in application of their law are that the state has an important interest in protecting its citizens, the economic gain or loss dependant on recovery by parties in the suit, or the policy reasons for proscribing certain conduct within its borders.58 Thus, if none of these justifications are brought into play as a result of the fortuitousness of the injury, courts need not take the place of injury into consideration.59 Because the Second Restatement allows judges to analyze not only the contacts, but also their weight and priority in terms of any given case, Judge Darrah has effectively eliminated, or at least reduced to marginality, the place of the injury portion of the analysis. Judge Darrah is supported in this view by several cases.60
Judge Darrah deals very quickly with Sections 145(2)(c), and 145(2)(d), the domicile of the parties and the place where the relationship is centered, respectively.61 The place of the domicile of the parties is most significant when considering issues of damages that apportion fault,62 and the court in Johnson is swift to point out that all of the plaintiffs are domiciled in Illinois, and that both Hertz and Ford are companies engaged in interstate business, including in Illinois.63 Hence, respecting damage rules that apportion fault, Illinois has the more significant interest and will have its law applied in Johnson.64 Next, Judge Darrah tackles the place where the relationship is centered. Essentially, the fact that the car was rented in Illinois, including the fact that Hertz had placed the car in Illinois, belies the fact that Illinois was the place in which the relationship between the plaintiffs and the defendants was centered.65 Furthermore, the court holds that this factor favors Illinois particularly in considering damages and apportionment of fault because of Illinois’ interest in the compensation of deserving plaintiffs/residents.66
Section 145(2)(b) presents the most contentious factor in Johnson. Although Judge Darrah finds that the three other factors are in favor of Illinois, he holds that in the context of the injury causing conduct, Kentucky law will apply.67 Judge Darrah states that while the occurrence of the accident in Kentucky was fortuitous (the reasoning for minimizing the importance of the place of injury), the fact that the Plaintiffs were not wearing their seatbelts in Kentucky was not fortuitous.68 The court indicates that Kentucky has a strong interest in maintaining safety on their roads.69 The court further holds that one way Kentucky attempts to maintain safety on their highways is by assessing comparative fault measures for plaintiffs who fail to wear seatbelts.70 Finally, Judge Darrah adds that Kentucky’s rescue personnel were on the scene of the accident, and that this affords Kentucky some other contact or interest such that Kentucky law should apply solely to the issue of comparative liability for non-use of seatbelts.71
In the last section of his order, Judge Darrah focuses on Section 6 of the Second Restatement, or the most significant relationship test.72 In his analysis, Judge Darrah takes the position that Illinois’ damages policy outweighs other states because it does not apportion fault, but merely assesses the right to recovery.73 Judge Darrah asserts that Kentucky has no interest in apportioning fault to foreign citizens and corporations,74 and as a result, ought not have their law applied where the interests and contacts are strongly in Illinois’ favor.75 Yet, Judge Darrah also holds that states have strong interests in proscribing conduct within their borders,76 and because the law regarding seatbelt usage and recovery of damages in Kentucky is meant to keep roads safe, Kentucky has an interest in the application of its law on this issue.77 Lastly, Judge Darrah concludes his order with the assertion that his holding is in following with the tenets of Section 6, in that it is consistent with concerns about predictability, expectations of the parties, and the policies behind the law.78
In determining a question of choice of law, the forum should give consideration not only to its own relevant policies. . . but also to the relevant policies of all other interested states. The forum should seek to reach a result that will achieve the best possible accommodation of these policies. The forum should also appraise the relative interests of the states involved in the determination of the particular issue. In general, it is fitting that the state whose interests are most deeply affected should have its local law applied.79
The court’s holding in Johnson was well within the bounds of the Second Restatement and Judge Darrah’s account of the relevant policies and contacts is solid. Nevertheless, it seems as though Judge Darrah’s holding, particularly in regard to Kentucky’s seatbelt law, is somewhat contradictory.
In its outline of the four issues at stake in Johnson, the court characterizes the Kentucky seatbelt law by stating that if the plaintiffs are shown to not have worn their seatbelts, "and that such fault was a substantial factor in enhancing or contributing to the plaintiff’s injuries, then the jury can appropriately reduce the plaintiff’s award."80 Judge Darrah further holds that where issues concerning the apportionment of fault are at stake, the place of the parties’ domicile is a weighty consideration.81 Next, the court states, when considering the relationship between the parties, that "[w]hatever weight to be afforded by this factor favors Illinois and the application of its law, particularly when considering issues of apportioning fault and the related issues of economic impact regarding compensation for the injuries" (emphasis added).82 Additionally, Judge Darrah finds that Illinois damages policy, as such, does not seek to apportion fault, and therefore ought to be applied as the relevant policy of the forum state.83 Thus, if the Kentucky statute is designed to apportion fault to the plaintiffs,84 issues that apportion fault are heavily influenced by the domicile of the state,85 and Illinois damages policy does not seek to apportion fault,86 why is the court applying Kentucky law to this issue? Judge Darrah is applying a law that is not only repugnant to Illinois damages policy, but also contradictory to Judge Darrah’s own holding concerning fault apportionment and the domicile and relationship of the parties.
Unlike Currie’s interest analysis, the weighing of governmental interests is prescribed in the Second Restatement by the most significant relationship test.87 As a result, the two have dramatically different results when applied. In Johnson, the court held that Kentucky had a strong interest in the laws regarding the rules of the road, and in proscribing certain activity thereon by apportioning fault to the plaintiff in certain tort claims.88 Yet, the Restatement takes into account the relevant policies of the involved states and asks that the court apply the law of the state that is most deeply affected.89 In Johnson, Illinois is the "most deeply affected" state. As illustrated by the court’s opinion, Illinois has the stronger interests under all of Section 145(2), with the exception of 145(2)(b), and more importantly, under Section 6.90 Yet, Kentucky is in fact only slightly affected by the application or non-application of its law. Comment e to Section 6(2) states that "[i]f the purposes sought to be achieved by a local statute or common law rule would be furthered by its application to out- of-state facts, this is a weighty reason why such application should be made."91 In Johnson, this is not the case. If the policy behind Kentucky’s law is to encourage people to wear their seatbelts with the caveat that if they do not they will suffer later consequences when in court,92 it is hard to see how non-residents of Kentucky would be affected by the application of Kentucky law in Johnson. While it does seem that Kentucky’s policy is implicated, the fact of the matter is that Judge Darrah’s holding unnecessarily jeopardizes the Plaintiff’s recovery by applying a law that was enacted to deal solely with Kentucky residents.
Both Currie and the drafters of the Second Restatement believed that legislators have only local interests in mind when they are formulating their state’s laws. This thought is pertinent in Johnson especially because the out of state driver was first, involved in an accident in Kentucky. The accident was of a fortuitous nature and none of the parties have any contact with Kentucky other than the accident, which could have taken place anywhere.93 Next, the policy underlying the Kentucky law was meant to deal with recovery issues involving Kentucky parties, which is not the case in Johnson.94 Furthermore, the Kentucky seatbelt defense is a judge made rule, not codified specifically, but drawn from the Kentucky Uniform Comparative Fault Act.95 This fact alone calls into question the strength of Kentucky’s interest because the policy itself has yet to be codified. On the other hand, Illinois has a strong interest in the recovery of its citizens and will be the state most affected by "related issues of economic impact regarding compensation for the injuries."96 Illinois is the "most deeply affected" state.
Judge Darrah’s holding in Johnson is as well reasoned as any choice of law opinion one will find. The Second Restatement allows for judges to weigh and balance several factors to come to a just conclusion.97 In fact, what little room Judge Darrah leaves for argument stems from a problem foreseen by Professor Brainerd Currie himself.98 As recognized by Currie, the state where the injury occurred can always claim some relationship to the case.99 Kentucky spent resources on Plaintiffs by providing emergency medical and roadside assistance, cleanup, and other such services. Cases have been decided on this so-called "blood on the ground" doctrine,100 but have more often been criticized by scholars as non-compelling interests.101Furthermore, judges are forced to consider broader issues in choice of law cases, like comity and interstate politics, as prescribed in Section 6 of the Second Restatement.102 Thus, Judge
Darrah may be applying Kentucky law in one issue of the case as a result of the interest in keeping sister states content with one another. Yet, it is still the case that Illinois has the strongest interest in the case and that Kentucky policy is only slightly implicated, if at all, by a case involving all foreign parties.
Choice of law considerations and conflict of laws jurisdiction is and has been in a state of flux. While this fact does not promise to cease anytime in the near future, the opinion in Johnson reflects a standard application of the Second Restatement and offers an easy to follow guide to choice of law jurisdiction for practitioners.
1 Id. at 1.
8 Johnson v. Ford Motor Co. Inc., 2003 WL 22317425 at 1; Johnson v. Ford Motor Co., Inc., 2004 WL 407022 at 1 (N.D.Ill. 2004).
9 Johnson v. Ford Motor Co. Inc., 2003 WL 22317425 at 1 (N.D. Ill. 2003).
10 Ky.Rev.Stat. Ann. §411.182(3)
11 735 Ill.Comp.Stat. §5/2-1116
12 Ky.Rev.Stat. Ann. §411.182(1)-(2)
13 Johnson v. Ford Motor Co., Inc., at 2; see also Floyd v. Carlisle Const. Co., 758 S.W.2d 430, at 432 (Ky. 1988).
14 652 Ill.Comp.Stat. §5/12-603.1(c).
15Benjamin N. Cardozo, The Paradoxes of Legal Science 67 (1928); William L. Prosser, Interstate Publication, 51 Mich. L. Rev. 959, 971 (1953).
16 Harold P. Southerland, A Plea For The Proper Use of The Second Restatement of Conflict of Laws, 27 Vt. L. Rev. 1, 2 (2002); See Also, John T. Cross, The Conduct Regulating Exception in Modern United States Choice-of-Law, 36 Creighton L. Rev. 425, 427 (2003).
18 David P. Currie, Herma Hill Kay & Larry Kramer, Conflict of Laws 2-5 (6th ed. 2001).
19 Southerland, supra note 19, at 3.
20 Currie, supra note 21, at 10.
21 Southerland, supra note 19, at 3.
23 Currie, supra note 21, at 12-13.
26 Southerland, supra note 19, at 3.
28 Currie, supra note 21, at 38-82.
29 Southerland, supra note19, at 5-6
30 Southerland, supra note19, at 3
32 Southerland, supra note 19, at 4.
36 Southerland, supra note 19, at 4; Cross, supra note 19, at 432-33.
37 Southerland, supra note 19, at 4; Cross, supra note 19, at 432-33.
38 Cross, supra note 19, at 434.
41 Restatement (Second) of Conflicts of Law § 6 (1971).
42 Currie, supra note 21, at 200-2
43 Restatement (second) of Conflicts of Law § 145 (1971).
44 Schulze v. Illinois Highway Transp. Co., 423 N.E.2d 278, 280 (Ill.App.Ct. 1981).
45 Cross, supra note 19, at 431.
46 Johnson, supra note 1, at 2.
49 Restatement (second) of Conflicts of Laws § 145(2)(a) (1971).
50 Ingersoll v. Klein, 262 N.E.2d 593, at 595 (Ill. 1970).
51 Johnson, supra note 1, at 3.
52 Id. at 2-3.
53 Id. at 2-5.
54 Johnson, supra note 1, at 1.
55 Id. at 3.
56 For example, the Johnsons were en route from Florida to Illinois. The accident could have occurred at any point and in any state along the way.
57 Johnson, supra note 1, at 3.
60 Marinez v. Smithway Motor Xpress, Inc., 2000 WL 1741910, at 2 (N.D. Ill. 2000); Schulze v. Illinois Highway Transp. Co., 423 N.E.2d 278, at 280 (Ill.App.Ct. 1981); Miller v. Hayes, 600 N.E.2d 34, at 38 (Ill. App.Ct. 1992).
61 Johnson, supra note 1, at 4.
67 Johnson, supra note 1, at 4.
71 Id. at 4-5.
72 Id. at 4-5.
75 Id at 4-5.
76 Id. at 4-5.
78 Id. at 5.
79 Southerland, supra note 19, at 12.
80 Johnson v. Ford Motor Co., 2003 WL 22317425 at 2 (N.D. Ill.).
81 Id. at 4.
84 Id. at 2.
85 Id. at 4.
87 Restatement (Second) of Conflicts of Law § 6 (1971); See also Restatement (Second) of Conflicts of Law § 145 (1971).
88 Johnson, supra note 1, at 4-5.
89 Southerland, supra note 19, at 12.
90 See Johnson v. Ford Motor Co., 2003 WL 22317425 at 2 (N.D. Ill.).
91 Restatement (Second) of Conflicts of Law § 6(2) cmt. e (1971).
92 Johnson, supra note 1, at 2.
95 Wemyss v. Coleman, 729 S.W.2d 174, 179-181 (Ky. 1987).
96 Johnson, supra note 1, at 4.
97 See Restatement (Second) of Conflicts of Law § 6 (1971); See also Restatement (Second) of Conflicts of Law § 145 (1971).
98 Southerland, supra note 19, at 33.
99 Brainerd Currie, Selected Essays on the Conflict of Laws 150-152 (1963).
100 Southerland, supra note 19, at 33 n.155.
101 Southerland, supra note 19, at 33-34.
102 Restatement (Second) of Conflicts of Law § 6 (1971).