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N.J. Superior Court, Appellate Division TORTS – Choice of Law – Motor Vehicle Accidents Dolan v. Sea Transfer Corp. et al, A-1279-06T1; Appellate Division; opinion by Reisner , J.A.D.; decided and approved for publication February 20, 2008. Before Judges S.L. Reisner, Gilroy and Baxter. On appeal from the Law Division, Middlesex County, L-8762-04. [Sat below: Judge Mathias Rodriguez.] DDS No. 05-2-9702 [26 pp.] This appeal considers the applicability, under choice-of-law principles, of New York law to this personal-injury action arising out of a motor vehicle accident in New Jersey. The accident occurred when a car driven by plaintiff Paul Dolan collided with a container that had fallen off a tractor-trailer. The truck was composed of a chassis and a container belonging to defendant Hapag-Lloyd AG (H-L) and a cab belonging to Sea Transfer Corp. The truck was taking H-L’s cargo from Staten Island to the Bronx. Although the most direct route would have been to drive entirely through New York, the driver, Jose Gonzalez, a New York resident, drove through New Jersey to avoid New York city traffic. Gonzalez had failed to properly secure the container to the truck chassis and had skipped the optional “roadability” inspection on his way out of the terminal. As he was driving around a curve in New Jersey, the container dislodged from the chassis. Dolan, a New Jersey resident employed by the City University of New York (CCNY), was on his way home from work. He collided head-on with the container and sustained massive injuries. The New Jersey trial judge granted plaintiff’s motion to apply New York law to the issue of H-L’s liability, reasoning that the negligent act at the root of the accident – Gonzalez’s failure to properly attach the container to the chassis – occurred in New York. The jury returned a verdict for plaintiff. Defendant’s motion for a new trial was denied. On appeal, defendant challenges the decision to apply N.Y. Vehicle and Traffic Law � 388, which imposes vicarious liability on the owner of a motor vehicle for the negligence of a permissive user of the vehicle. New Jersey law does not impose liability on the owner for the negligence of a permissive user who is not the owner’s agent. Held:The trial court properly applied New York law to determine H-L’s liability for the accident. Imposing liability on H-L will further New York’s policy to protect innocent accident victims and encourage traffic safety without frustrating the purpose of New Jersey’s law. In deciding choice-of-law issues in tort cases, New Jersey applies a governmental-interest test. A court must first determine if there is a conflict between the laws of the interested states. If, as here, there is, the court must then identify the governmental policies underlying each state’s law and determine if those policies are affected by each state’s contacts to the litigation and to the parties. The panel notes that prior New Jersey case law has determined that the purpose of � 388 is to ensure sufficient insurance coverage for injured accident victims and to promote safety among vehicle owners based in New York or whose cars are brought into New York. The purpose of New Jersey’s law is to protect vehicle owners from liability without fault. It has no deterrent or compensatory purpose. The panel then agrees with the trial judge’s decision to apply New York law to this accident. It notes that the primary act of negligence occurred in New York. Further, since Gonzalez was engaged in a New York transaction, there is a reasonable relationship between H-L and New York law. The panel also notes that � 388 specifically applies vicarious liability to the owner of a container, chassis or other equipment that is part of a tractor-trailer. Thus, a legislative intent to encourage such owners to guard against the type of accident that occurred here may fairly be inferred. Moreover, because H-L’s containers would necessarily be driven in New York, it was on notice that it was subject to � 388 and could insure against that potential liability. The Appellate Division also concludes that the accident’s occurrence in New Jersey was fortuitous. It could as easily have occurred in New York. As a New York employee, Dolan was within the universe of persons whose safety the New York law was aimed at protecting. Further, the accident had some impact in New York, as Dolan received sick-leave pay from CCNY and his injuries deprived CCNY of a long-term employee. The panel says that while a choice-of-law determination cannot be made simply to ensure a recovery for the plaintiff, applying New York law here serves that state’s legislative purpose to ensure a sufficient recovery for a badly injured accident victim. New Jersey’s interest in applying its policy of equating liability with fault does not outweigh New York’s policy to encourage traffic safety and ensure an adequate recovery for accident victims. The Appellate Division also concludes that the trial court did not err in denying H-L’s motion for a new trial despite plaintiffs’ counsel’s improper comment on H-L’s negligence and his inappropriate reference to the value of plaintiff’s injuries. – By Judith Nallin For appellant – Stacy Alison Fols (Montgomery, McCracken, Walker & Rhoads; Fols, John J. Levy and Sarah E. Zuba on the brief). For respondents – Richard J. Weiner and Raymond S. Carroll (Weiner, Carroll & Strauss).

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