Before reaching its intended destination, the plane crashed in
Brandywyne, Maryland, killing all three occupants on board. (Id., Ex. B,
Thereafter, three separate wrongful death actions were filed. Despite
the number of claims, there are essentially three theories of liability
relating to the plane crash. First, there are claims that pilot Schaal
negligently operated the aircraft by, inter alia violating his air
traffic control clearance and descending below his assigned altitude.
Second, there are claims brought pursuant to the FTCA, that the air
traffic controllers at the Washington National Terminal Radar Approach
Control Facility ("TRACON") in Alexandria, Virginia, which is operated by
the Federal Aviation Administration, negligently failed to notify pilot
Schaal that he was approaching the airport at an altitude that was too
low, and failed to relay critical audio and visual safety warnings.
Finally, there are claims against owner Schott that she negligently
failed to provide an airworthy aircraft.
Roslyn Clawans first filed an action for the wrongful death of Stanley
Clawans against the United States and the Estate of pilot Schaal. (Id.,
Ex. A). Schaal's executor filed a third party complaint against owner
Schott and the County of Somerset*fn1 and a cross-claim for contribution
against the United States. (Id., Ex. B). The United States filed a
cross-claim for contribution against the Estate of Schaal, and Schott
filed cross-claims against co-defendants for contribution. (Id., Ex. D,
E). The County of Somerset filed cross-claims for contribution. (Id.,
Plaintiff Richard Adamo, Nicholas Adamo's father, filed a second action
for the wrongful death of his son against the United States, the Estate
of Schaal and Schott. (Id., Ex. H). The Estate of Schaal filed a third
party complaint against the County of Somerset and cross-claims for
contribution against the United States and Schott. (Id., Ex. I) The
United States filed a cross-claim for contribution against the Estate of
Schaal and Schott filed cross-claims for contribution against all
defendants. (Id., Ex. J, K). The County of Somerset also filed
cross-claims for contribution. (Id., Ex. L)
Plaintiff Ethel Schaal filed a third action for the wrongful death of
pilot Elmer Schaal, Jr., against the United States and Schott. (Id., Ex.
N). Schott impleaded the Estate of Schaal as a third-party defendant and
asserted cross-claims for contribution. (Id., Ex. O)*fn2
1. The Claims Under the FTCA
All three actions against the United States were brought pursuant to
the FTCA. The FTCA confers exclusive jurisdiction on federal district
courts for claims against the United States for "personal injury or death
caused by the negligent or wrongful act or omission of any employee of
the Government," and further provides that such liability should be
determined "in accordance with the law of the place where the act or
omission occurred." 28 U.S.C. § 1346 (b). The phrase "law of the
place" has been construed to include that state's conflict of laws
principles. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d
492 (1962). Because the alleged negligent acts of the air traffic
controllers occurred in Virginia, the rights and liability of the United
States are governed by the law of the State of Virginia.
Virginia follows the rule of lex loci delicti. See McMillan v.
McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979). Under that principle, the
substantive law of the "place of the wrong" governs. Id. In airplane
accident cases, courts following
the rule of lex loci delicti have found that the appropriate state law is
the law of the situs of the crash. See, e.g., Thornton v. Cessna Aircraft
Co., 886 F.2d 85 (4th Cir. 1989); Spring v. United States, 833 F. Supp. 575
(E.D.Va. 1993). The crash here occurred in Maryland.*fn3
In the motion before the Court, none of the parties dispute that
Maryland law applies to all claims against the United States pursuant to
the FTCA. Accordingly, this Court holds that all claims asserted against
the United States under the FTCA are governed by Maryland law.
2. The State Law Claims
This Court has supplemental jurisdiction over the remaining state law
claims. Accordingly, it will apply the choice of law rules of New
Jersey, the forum state, to those claims. Klaxon Co. v. Stentor Electric
Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1Z1).
New Jersey has rejected the traditional rule of lex loci delicti in favor
of the more flexible "governmental-interest" test. That test seeks to
apply "the law of the state with the greatest interest in governing the
specific issue in the underlying litigation." Fu v. Fu, 160 N.J. 108,
118, iZ3 A.2d 1133 (1999).
The first prong of the analysis requires a determination that an actual
conflict exists between the laws of Maryland and New Jersey. No party has
argued that a conflict exists with respect to any issues relating to
standards of liability.*fn4 However, there is one significant difference
between the laws of New Jersey and Maryland with respect to allocation of
fault between joint tortfeasors, which in turn, implicates the parties'
cross-claims for contribution. Additionally, there are differences
between the two states' laws with respect to non-economic damages.
First, under the Comparative Negligence Act, New Jersey allows a trier
of fact to apportion liability among joint tortfeasors based on his or
her proportionate degree of fault. N.J.S.A. 2A: 15-5.2. The trier of fact
may also consider the negligence, if any, of the plaintiff in
apportioning fault. By contrast, under Maryland Law, liability among
tortfeasors is apportioned on a pro rata basis, without regard to degree
of fault of each defendant. Md. Code Ann. § 3-1402; see Chilcote v.
Von Der Ahe Van Lines, 300 Md. 106, 476 A.2d 204 (1984). Maryland is also
a strict contributory negligence jurisdiction and does not recognize
comparative fault. Harrison v. Montgomery County Bd. of Educ., 295 Md. 442,
456 A.2d 894 (Md. 1983).
The laws of Maryland and New Jersey also diverge with respect to the
type of non-economic losses recoverable by a parent for his or her adult
children. Under New Jersey law, a parent can recover for the loss of
companionship, guidance, advice and counsel to the extent it is "confined
to its pecuniary element." Green v. Bittner, 85 N.J. 1, 14, 424 A.2d 210
(1980). Maryland, on the other hand, until recent amendment,*fn5 did not
allow recovery for such losses for the death of an adult child, unless
the child was receiving at least 50% of his or her support from the
parent. Md.Code Ann., § 3-904(e) (revised 1997); see Carolina Freight
Carriers Corp. v. Keane, 311 Md. 335, 534 A.2d 1337 (Md. 1988) (applying
law prior to revision). Maryland also imposes a cap on non-economic
damages; there is no such monetary cap in New Jersey. Md.Code Ann. §
Having determined that actual conflicts exist, the second step is to
determine the interest that each state has with respect to the specific
issues in dispute. That inquiry is substantially similar to the "most
significant relationship test" adopted by the Restatement (Second) of
Conflict of Laws (1971).*fn6 See Fu v. Fu, 160 N.J. 108, 122,
733 A.2d 1133 (1999). That analysis requires the court to "identify the
governmental policies underlying the law of each state and how those
policies are affected by each state's contacts to the litigation and to
the parties." Gantes v. Kason Corp., 145 N.J. 478, 485, 679 A.2d 106
Also relevant to the analysis are the competing policies of (a) the
place where the injury occurred; (b) the place where the conduct causing
the injury occurred; (c) the domicile, residence, nationality, place of
incorporation and place of business of the parties; and (d) the place
where the relationship, if any, between the parties is centered. Fu, 160
N.J. at 125, 733 A.2d 1133 (quoting Restatement (Second) of Conflict of
Laws § 145(2)).
The Court will first consider which law is applicable to the issue of
recoverability of non-economic damages. The policies underlying allowance
of the type of non-economic damages were recognized by the New Jersey
Supreme Court in Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980), and
are applicable here. As the Court explained:
We intend . . . to give juries in wrongful death cases
involving children the same ability to do justice to
their parents, within the limits of existing
legislation, as they now have under our cases when
children lose a parent. By thus expanding the
permissible scope of recovery, we also hope to reduce
the pressures on juries to award damages for the
parents' emotional suffering, unquestionably the most
substantial element of damages in these cases, but
85 N.J. at 5, 424 A.2d 210. New Jersey does not impose any monetary cap
on such damages.
Recognition of Green v. Bittner damages is also consistent with New
Jersey's general interest in insuring full and fair compensation for its
injured domiciliaries in tort actions, such as the three New Jersey
plaintiffs who have brought suit here. Fu, 160 N.J. at 131, 733 A.2d 1133;
Mellk v. Sarahson, 49 N.J. 226, 234, 229 A.2d 625 (1967) (Where New
Jersey residents are involved, New Jersey's strongly declared policy
favoring compensation for its domiciliaries prevails); Dent v.
Cunningham, 786 F.2d 173, 176 (3d Cir. 1986) ("New Jersey courts have
long recognized a significant public interest in compensating their
injured domiciliaries.") Conversely, Maryland has no interest in
compensating non-domiciliaries, such as the plaintiffs here, who reside
in New Jersey. See Marinelli v. K-Mart Corp., 318 N.J. Super. 554, 556,
724 A.2d 806 (1999).
The interest of deterrence is also recognized as a relevant factor in
choice of law decisions in tort actions. Gantes v. Kason Corp.,
145 N.J. 478, 489, 679 A.2d 106 (1996). New Jersey has a strong interest
in preventing tortious misconduct by its domiciliaries Mueller v. Parke
Davis, 252 N.J. Super. 347, 354, 599 A.2d 950 (App. Div. 199 1) (New
Jersey has interest "in assuring that its domiciliaries perform their
duties and obligations"). Here, two of the
three defendants from whom compensatory damages are sought, pilot Schaal
and owner Schott, are New Jersey domiciliaries In addition, the claims
against defendant Schott are based on negligence allegedly committed in
New Jersey—failure to provide an airworthy aircraft. The fact that
defendant United States is not a New Jersey resident is entitled to
little, if any, weight since the claims asserted against it will be
determined under Maryland law. Under these circumstances, considerations
of deterrence militate in favor of applying New Jersey law.
Any interest that Maryland has in deterrence is diminished in this case
because its contact with the situs of the accident was primarily
fortuitous. See Foster v. United States, 768 F.2d 1278, 1282 (11th Cir.
1985) ("in aircraft cages, the place of injury is almost always
fortuitous and thus not entitled to its usual weight in the choice of
law's decision"); In Re Air Crash Disaster Near Chicago, 644 F.2d 594,
615 (7th Cir. 1981) ("[A]ir crash disasters often present situations
where the place of injury is largely fortuitous"). In addition, the
location of the accident is a less significant factor here, because the
claims stemming from negligence under the FTCA will be governed by the
law of Maryland, the site of the crash.
Defendants point to Maryland Transportation Law, Md. Code Ann., §
5-103(a), as an expression of Maryland's interest in aviation safety.
While that statute may be probative if there were a conflict with respect
to liability between New Jersey and Maryland, it is accorded
substantially less weight where it has no relationship to the precise
issue under consideration: the recoverability of non-economic damages for
parents of adult children. See Gantes, 145 N.J. at 485, 679 A.2d 106 ("We
look first to the policies that underlie the respective state statutes
that are in conflict in this case.").
This Court is "provided that New Jersey has the greatest interest in
and the most significant relationship to, the issue of damages. This case
involves two New Jersey businessmen who hired a New Jersey pilot to take
them from an airport in New Jersey on a plane owned by a New Jersey
resident to a meeting in Maryland. Hence, New Jersey has the single
greatest interest in providing for the appropriate recovery for estates
of New Jersey decedents. Accordingly, New Jersey law will govern the
issue of non-economic damages.
The Court next turns to the issue of apportionment of fault. As
explained above, all cross-claims for contribution asserted against the
United States, i.e., those asserted by the Estate of Schaal and by
Schott, are governed by the FTCA and hence, Maryland law. No party
disputes that Maryland law applies to those claims. The issue to be
decided is whether the remaining cross-claims for contribution—
against the United States by the Estate of Schaal and by Schott, and
between the Estate of Schaal and Schott—should be decided by
Maryland law or New Jersey law.
The Court begins by considering the interest that each state has in
resolving the value of the remaining cross-claims asserted in this case.
Gantes v. Kason Corp., 145 N.J. 478, 679 A.2d 106 (1996). The Court notes
that because the issue here relates to liability, as opposed to damages,
New Jersey's interest in compensating its domiciliaries does not come
into play. In addition, two of the cross-claims at issue are asserted by
a non-New Jersey domiciliary, the United States, for wrongs committed in
Maryland. Only one of the cross-claims—that asserted by the Estate
of Schaal against Schott—relates to tortious conduct in New
Jersey. These factors militate against application of New Jersey law.
This Court finds that Maryland should govern the issue of apportionment
of fault in this case. Our conclusion is consistent with the expression
in Md.Code Ann., § 5-103(a) that Maryland has an interest in "wrongs
committed in flight over this State." The Court is also persuaded that
the interest of all parties will be adequately
protected by the application of Maryland law to the issue of apportionment
of fault. Both New Jersey and Maryland adhere to principles of joint and
several liability. The only difference at issue here is that Maryland
allocates fault on a pro rata basis, while New Jersey apportions based on
actual degree of fault. Under either approach, New Jersey's interest in
insuring that its domiciliaries are fairly compensated is advanced and is
consistent with protecting the "justified expectations" of the
plaintiffs. Fu, 160 N.J. at 122, 733 A.2d 1133 (citing Restatement
(Second) of Conflict of Laws, § 6).
Given that the cross-claims against the United States must be governed
by Maryland law under the FTCA, the Court believes that application of
Maryland law to the remaining cross-claims will result in "certainty,
predictability and uniformity of result" insofar as the plaintiffs will be
ensured that fault will be fully allocated between the parties. Id. In
addition, it will result in "ease of application of law to be applied"
given the number of parties and claims. Id. Those factors weigh in favor
of application of Maryland law.
Accordingly, the Court finds that Maryland law governs all claims under
the FTCA as well as all the issue of apportionment of fault and that New
Jersey law governs the issue of non-economic damages.
An appropriate Order is attached.
In accordance with the Court's Opinion filed herewith,
It is on this 23d day of November, 1999
ORDERED that the motion of defendant United States of America to
determine that Maryland law is applicable to all claims asserted by and
against the United States is granted; and it is further
ORDERED that the cross-motion of defendant Estate of Elmer W. Schaal,
Jr. to determine that Maryland law is applicable is granted in part and
denied in part; and it is further
ORDERED that the cross-motion of plaintiff Richard Adamo to determine
that New Jersey law is applicable is granted in part and denied in part.