South Carolina Lawyer
SC Lawyer, September 2009, #1.
Conflicted About Conflicts? A Simple Introduction to Conflicts of Laws
South Carolina Lawyer September 2009 Conflicted About Conflicts? A Simple Introduction to Conflicts of Laws By Yasamine J. Christopherson I. Introduction
Conflicts of laws has been called "'a confusing morass,' a 'veritable jungle' and a 'dismal swamp.'" Ruth Bader Ginsburg, Tribute to Robert A. Leflar, 50 Ark. L. Rev. 407, 408 (1997). A simple hypothetical illustrates the problem. Plaintiff passenger is on vacation in Alaska. While plaintiff's friend is driving, he collides with a moose on an Alaska roadway. The injured passenger is from South Carolina, the defendant driver is from South Carolina and the medical care is rendered in South Carolina. Alaska has a guest statute, but South Carolina does not. South Carolina is the forum. Should the court apply Alaska or South Carolina law? The answer-provided in the conclusion-hinges on the approach South Carolina uses for deciding conflicts of laws.
Issues arising from conflicts of laws are often outcome determinative as the hypothetical above and case law below suggest. Thus, it is imperative for lawyers to understand the application of the conflicts rules to the facts of a case. Once the rules have been applied, knowledge of the escape devices is also necessary because South Carolina courts have used escape devices, such as characterization, renvoi and public policy, to circumvent the state's conflicts rules. Because of the many permutations for conflicts rules and the escape devices, this is not an exhaustive treatment of conflicts rules; it is only meant to provide the basic principles from which to build.
II. South Carolina and the First Restatement
South Carolina currently follows the First Restatement of Conflicts of Laws' approach to conflicts of laws for both torts and contracts. The goals of the First Restatement were to reduce forum shopping and increase predictability and uniformity. Luther L. McDougal III, Et. al., American Conflicts Law §79, at 326 (5th ed. 2001). These goals were to be achieved by a set of concrete rules designed to promote the interests of territorialism and vested rights. Id.
A.Torts-place of injury
South Carolina generally follows the First Restatement's "place of injury" test, or lex loci delicti for tort cases. Dawkins v. State of South Carolina illustrates the state's strict adherence to the First Restatement. 306 S.C. 391, 392, 412 S.E.2d 407, 408 (1991). The plaintiff in Dawkins brought an action for negligent infliction of emotional distress against the S.C. Department of Corrections. Id. at 392, 412 S.E.2d at 407-08. Plaintiff suffered psychological problems after watching his family murdered by an escaped inmate. Id. The plaintiff was from Georgia, and his family was murdered in Georgia. Id. However, the inmate escaped from a South Carolina detention center. Id. at 392, 412 S.E.2d at 408. Georgia's law would bar recovery because it required bodily contact for the plaintiff to recover, and the plaintiff was only an observer. Id. The plaintiff argued on appeal that South Carolina law, which would permit recovery, should apply because application of Georgia state law would violate public policy. Id.
The court in Dawkins refused to apply forum law, stating: "It is well established in South Carolina that in tort cases 'the law of the place where the injury was occasioned or inflicted, governs in respect of the right of action, and the law of the forum in respect to matters pertaining to the remedy only.'" Id. at 392-93, 412 S.E.2d at 408 (citing Rauton v. Pullman Co., 183 S.C. 495, 501, 191 S.E. 416, 419 (1937)). Thus, the court followed the place of injury rule, which pointed to Georgia law, and declined to apply the public policy exception to allow recovery. Id. at 393, 412 S.E.2d at 408.
B.Contracts-place of contracting
Absent a contractual choice-of-law clause, South Carolina follows the First Restatement's place of contracting rule, or lex loci contractus, for conflicts of laws regarding contract actions. SeeLivingston v. Atl. Coast Line R.R. Co., 176 S.C. 385, 391, 180 S.E. 343, 345 (1935) (matters concerning interpretation and enforcement of a contract are governed by the place of contracting; matters regarding performance of the contract are governed by the law at the place of performance); Witt v. Am. Trucking Ass'ns, Inc., 860 F.Supp. 295 (D.S.C. 1994); 4 S.C. Jur. Action § 7 (last updated September 2008).
South Carolina courts generally enforce choice-of-law provisions requiring application of a different state's laws as long as there is a reasonable relationship between the parties and the chosen law. Firestone Financ. Corp. v. Owens, 309 S.C. 73, 75-76, 419 S.E.2d 830, 832 (Ct. App. 1992); T & S Brass and Bronze Works, Inc. v. Pic-Air, Inc., 790 F.2d 1098, 1102 (4th...