Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
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inferences attached to the violation; rules that prescribe safety standards for work
sites, buildings, and other premises; rules that impose punitive damages; and rules
defining as tortious conduct such as “alienation of affections,” “interference with
marriage,” or “interference with contract,” and granting an action against the actor. In
contrast, loss-distributing rules are those that “prohibit, assign, or limit liability after
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the tort occurs.” They include not only guest statutes, which now are virtually
extinct, but also rules that define the amount of compensatory damages, and rules of
interspousal immunity, parent-child immunity, worker’s compensation immunity, and
loss of consortium.
Admittedly, the line between the two categories is not always as bright as one
would like. While some tort rules are clearly conduct-regulating and others are clearly
loss-distributing, there are many tort rules that do not easily fit in either category, and
some rules that appear to fit in both, namely they both regulate conduct and effect or
affect loss distribution. Nevertheless, despite the difficulties in its application, this
distinction provides a useful starting point for resolving or analyzing many tort
conflicts, although in many such conflicts the distinction will not make a difference.
The starting point is a presumption that conduct-regulating rules are territorially
oriented and loss-distribution rules are not necessarily territorially oriented.
Consequently, territorial contacts (namely the places of conduct and injury) remain
relevant in conduct-regulation conflicts, while both territorial and personal contacts
(i.e., the parties’ domiciles) are relevant in loss-distribution conflicts.
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For reasons explained in detail elsewhere, as well as later in discussing the
exceptions to the lex loci damni rule, the view of this author is that this rule produces
functionally defensible results in the following patterns of cases:
(1) intrastate torts involving conflicting conduct-regulation rules, regardless
of where the parties are domiciled;
(2) intrastate torts in which the issue is one of loss distribution and either the
tortfeasor or the victim is domiciled in the state of conduct and injury; and
(3) cross-border torts involving either conduct-regulation or loss distribution
conflicts, in which: (a) the state of injury prescribes a higher standard of
conduct for the tortfeasor or of financial protection for the victim than the state
of conduct; and (b) in which the occurrence of the injury in the former state
was objectively foreseeable.
In the first two patterns, the application of the law of the state of conduct and
87. Examples include rules providing that a person involved in a collision while driving in excess
of the speed limit, or while being intoxicated, is presumed to be negligent, and rules providing
that, in a rear-end vehicular collision, the driver of the rear car is presumed to be at fault.
88. Padula, supra note 86, at id.
89. See SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 141-263.
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