[101 NJSuper Page 185] This is a motion for judgment on the pleadings by the defendants based on their affirmative defense that the guest statute of the State of Florida bars plaintiffs' suits arising from an automobile accident which occurred there; and a cross-motion by the plaintiff, Edward Mullane, (now deceased), to strike that defense. The plaintiffs in the consolidated cases have agreed to be bound by the determination of these motions.
The plaintiffs' complaints charge defendants with negligence in failing to exercise reasonable care in the operation of their automobile, resulting in their sustaining personal injuries and/or wrongful death. The defendants contend the Florida law, which provides that a guest may not recover against his host-driver, applies unless he alleges and proves the driver to be grossly negligent or guilty of willful and wanton misconduct. Florida Statute § 320.59.
The following facts are undisputed: The plaintiffs, Edward Mullane, (now deceased), Francis J. Slane Jr. (now deceased) and Joseph F. Somerset, and the defendant, William Stavola, all domiciled in New Jersey when the accident occurred, were students at St. Leo's College, Dade City, Florida, for the school year 1966-1967. On November 12, 1966 while returning to the campus from Dade City, the automobile operated by the defendant, William Stavola, and owned by his mother, Mary Stavola, collided with a telephone pole. There were six fellow students in the Stavola automobile. Three died immediately, or soon thereafter, from injuries received in the accident. Plaintiff, Edward Mullane, was one of the survivors -- he remained in a coma from the date of the accident to February 15, 1968 when he died. Plaintiff, Joseph F. Somerset, and defendant, William Stavola, are the only remaining survivors.
Admittedly, the Stavola automobile was registered with the New Jersey Division of Motor Vehicles. Insurance was obtained in New Jersey and paid for under rates applicable therein. The plaintiffs and William Stavola resided in Florida while attending college and their ill-fated trip started and ended in Florida. Their respective parents were domiciled in New Jersey, and the plaintiffs and William Stavola expected to return to their New Jersey homes at the end of the school year.
The narrow issue is whether, under the facts here existing, New Jersey or Florida law applies on the issue of the duty owed by a host-driver to his guests.
New Jersey abandoned the lex loci delicti approach (that is, application of the law of the place of the wrong) in Mellk v. Sarahson, 49 N.J. 226 (1967), and adopted the approach used in Babcock v. Jackson, 12 N.Y. 2 d 473, 240 N.Y.S. 2 d 743, 191 N.E. 2 d 279, 95 A.L.R. 2 d 1 (1963). In Babcock, New York repudiated the lex loci delicti "jurisdiction-selecting" rule and replaced it with a "grouping of contacts" or "center of gravity" test as being more flexible and just. Today, the touchstone is to determine which state has the paramount governmental interest, or concern, in fixing the rights and liabilities between the parties when the case has multi-jurisdictional contacts.
The defendants argue that the guest law of Florida is applicable and rely heavily upon the 4 to 3 decision by the New York Court of Appeals in Dym v. Gordon, 16 N.Y. 2 d 120, 262 N.Y.S. 2 d 463, 209 N.E. 2 d 792 (Ct. App. 1965), which they contend is on all fours with the instant case. In Dym suit was commenced in New York by a New York passenger-guest against a New York driver-host, driving a New York registered car. The action was for personal injuries caused by the negligent operation of the host's car on a trip that began and ended in Colorado. Both plaintiff and defendant were domiciled in New York but were fellow students attending Colorado University when the accident occurred. The court held the Colorado guest statute applicable. I am convinced the majority of the court in Dym misapplied the rule in Babcock; and, in any event, Dym by the criteria laid down in Mellk is not the law in New Jersey. The majority in Dym fashioned a weighted contacts analysis, with the site (Colorado) where the relationship arose being the overly-weighted contact. The parties had "come to rest" there and were living under the aegis of Colorado law. The loci was not fortuitous. The majority of the court relegated public policy to a distant secondary position:
"* * * preoccupation with New York social welfare problems * * * should not be treated as 'contacts' which are found then to outweigh
the factual contacts. * * * Public policy, per se, plays no part in a choice of law problem." (262 N.Y.S. 2 d 463, ...