You may pick the exam up on Wednesday, April 25, 2007, between 4:00 and 5:00 p.m. from my secretary, Melissa Shimko, in Room 314 and turn your answer in to the Registrar 48 hours later (i.e., between 4:00 and 5:00 p.m. on Friday, April 27, 2007);^* OR you may pick the exam up from the Registrar on Friday, April 27, 2007, between 4:00 and 5:00 p.m. and turn your answer in to the Registrar by 10:00 a.m. on Monday, April 30, 2007; OR you may pick the exam up from the Registrar on Monday, April 30, 2007, any time between 9:00 a.m. and 5:00 p.m. and turn your answer in to the Registrar 48 hours later. In all events, the exam must be completed by Wednesday, May 2, 2007 at 5:00 p.m.

This is an open-book exam. You may consult the casebook, your class notes, outlines, hornbooks, and other study guides. You are bound by the normal in-class exam rules to the extent that they make sense for a take-home exam. For example, you must work alone without the assistance of any other person. Likewise, you must not share or discuss the questions or answers with any other person.

This exam has fourteen (14) pages; if you do not have all fourteen (14) pages, please inform the Registrar immediately. The exam consists of ten (10) multiple choice questions and one (1) essay question with two (2) sub-parts. The weight assigned to each question (or sub-part or group of questions, in the case of the multiple choice questions) is indicated at the beginning of each question, sub-part or group of questions.

Please be sure to include your exam number in the appropriate space on the Scantron answer sheet for the multiple choice questions and do not include your name. Please treat the Scantron sheet with care, taking care not to bend it or dog-ear the corners.

When answering the multiple choice questions on the Scantron answer sheet, please use a Number 2 pencil to facilitate the machine-grading of your answers. Each of the multiple choice questions will be weighted equally. Unless otherwise indicated, the facts of each multiple choice question stand on their own. Choose the best answer. If you find a question or one or more of the answers ambiguous and therefore have difficulty answering the question, you may include a short explanation in your typed answer identifying the ambiguity and explaining how you resolved it.

The answer to the essay question must be typed. Please use 8˝ by 11 inch paper; 12 point type; and one inch margins. Please double-space the answer and number the pages of the answer. The typed copy should not exceed 15 pages (including any explanations of multiple choice questions). Please put your exam number in the upper right hand corner of every page of your answer. Do not put your name on any page. When answering the essay question, please raise, discuss, and decide all issues presented, whether or not they are dispositive, and whether or not your resolution of one issue makes discussion of other issues technically unnecessary. If you need to assume additional facts, please state what those facts are and how they affect your analysis.

If a constitutional provision, statute, or section of one of the Restatements of Conflict of Laws is relevant, you should refer to it specifically. You are encouraged to refer to other relevant authority, including cases. You should explain fully the relevance of all authority cited.

Best of luck and enjoy the summer!

MULTIPLE CHOICE QUESTIONS

(30 points; 10 questions worth 3 points each)

1. Ozzie and Harriet, citizens of Pennsylvania, decided to take their kids to Disney World for a vacation. They purchased round-trip airline tickets on Airco Airlines ("Airco") from the ticket agent at the Pittsburgh airport. Airco is a Pennsylvania corporation, with its hub in Pittsburgh. Airco does business in all fifty states of the country, and has regular flights into and out of multiple airports in every state every day. Ozzie and Harriet could not get a direct flight from Pittsburgh to Orlando, Florida, so they had to change planes in Charlotte, North Carolina on the way to Florida. They enjoyed a wonderful five days in Orlando, visited all of the theme parks and basked in the balmy weather. Their flight back from Orlando to Pittsburgh was direct and uneventful; no change of planes was necessary. It had been the perfect trip . . . until they realized that the airline had lost their luggage. The family was distraught because, in addition to clothing and toiletries, the lost suitcases contained two expensive laptop computers and several irreplaceable items, including vintage jewelry passed down through generations of family and the children's Disney autograph books (containing the autographs they had collected from the Disney characters strolling through the theme parks). When, two weeks later, Airco told them, "We just can't find it; move on," Ozzie and Harriet decided to file suit against Airco, seeking damages in the amount of $20,000 for the lost items. Under Pennsylvania and Florida law, an airline passenger may recover the full replacement cost of all items contained in luggage lost by airlines doing business in the state. Under North Carolina law, an airline passenger may recover no more than $1000 per suitcase. Ozzie and Harriet filed suit in a Pennsylvania state court, which chose North Carolina law to govern their claims. Would the Pennsylvania court's choice of North Carolina law withstand a constitutional challenge?
   1. Yes, because Airco does business in all fifty states, including North Carolina, and Airco knew that it could be subject to suit in North Carolina and might be subject to North Carolina law.
   2. Yes, because the constitutional analysis applied in Sun Oil v. Wortman would support the choice of North Carolina law.
   3. No, because the due process clause of the Fourteenth Amendment forbids the application of North Carolina law in these circumstances.
   4. No, because the full faith and credit clause of Article IV of the Constitutions forbids the application of North Carolina law in these circumstances.
   5. Both C and D.

2. Harold and Maude, both citizens of Pennsylvania, planned a trip to New York City for a long weekend to celebrate their tenth wedding anniversary. They decided to take their time on the long drive from Pittsburgh to New York City, enjoying a leisurely meal in "Amish Country" as they crossed the state of Pennsylvania and later visiting for an hour or two with Maude's parents in New Jersey. After leaving Maude's parents' house and driving through New Jersey, Harold's car entered the Lincoln Tunnel and crossed into New York. Harold misjudged the sharpness of the curve in the exit ramp from the tunnel and crashed into a barrier. Maude was injured in the accident. Maude has filed suit against her husband Harold in a New York court to recover for the personal injuries she suffered in the accident. (Maude needs to sue Harold and to establish his negligence in order to collect from their automobile insurance company.) Assume that Pennsylvania law retains the common-law interspousal immunity doctrine, under which Harold would be immunized from liability to his wife. Assume that the New York legislature enacted a statute that abrogates the interspousal immunity doctrine and permits a married person to sue his or her spouse in tort for negligent operation of a motor vehicle. Further assume that the New York courts apply the Neumeier rules in cases in which they apply. Which state's law is the New York court most likely to apply to determine whether or not Harold is immune from liability?
   1. Pennsylvania law, because application of the first Neumeier rule yields that result.
   2. Pennsylvania law, because application of the second Neumeier rule yields that result.
   3. New York law, because application of the second Neumeier rule yields that result.
   4. Pennsylvania law, because application of the third Neiumeier rule yields that result.
   5. New York law, because the Neumeier rules govern only choices between loss-allocating rules and the interspousal immunity laws at issue here are conduct-regulating rules and the tortious conduct occurred in New York.

3. In 2003, Juanita, a citizen of Pennsylvania, was involved in a car accident in Pennsylvania in which she sustained serious damages. In 2005, Juanita filed suit in a state court in New Mexico against George, a citizen of New Mexico whose negligence caused the accident. The New Mexico court concluded that Pennsylvania substantive law should apply. Following a trial in 2007, the jury rendered a verdict in favor of Juanita in the amount of $250,000. A Pennsylvania statute authorizes judges in tort cases to award pre-judgment interest in the amount of five per cent per year, compounded daily (from the date of the wrong until the date of judgment). New Mexico has no pre-judgment interest statute. Which of the following considerations would support the New Mexico court's characterization of the interest statute as substantive?

A. Juanita and George did not plan to have an accident and therefore they did not act in reliance upon any particular state's law at the time of their primary conduct.

B. The Pennsylvania statute would authorize an award of approximately $55,000 in interest, an amount sufficiently large relative to the size of the verdict that it fairly can be characterized as "outcome-determinative."

C. Since New Mexico law does not provide for pre-judgment interest, the staff in the clerk's office of the New Mexico court may not have the requisite software to calculate interest that is compounded daily.

D. Both B and C.

E. None of the above.

4. Billy was born in New Jersey and lived there until he was eight years old. At that time, the company that employed his mother transferred her to Pennsylvania and the entire family moved to Pittsburgh. Billy's parents sold their New Jersey home and bought a new home in Pittsburgh. Billy never liked Pittsburgh and vowed that he would return to New Jersey when he grew up. At the age of eighteen, Billy matriculated at the University of Pittsburgh because he received a full scholarship there, even though he still wanted to return to New Jersey. Billy studied drama at Pitt. During the summer following his freshman year, Billy went to live with his grandparents in New Jersey and performed in summer stock at the Papermill Playhouse in Millburn, New Jersey. He returned to Pitt for his second year of college. The summer following his second year, Billy again returned to New Jersey to perform at the Papermill Playhouse. He became engaged to the stage manager of the theatre that summer, who was and is a New Jersey domiciliary. Billy spent his third year studying abroad in Florence and enjoying "la dolce vita." Billy returned to Pitt for his final year of college, traveling to New Jersey frequently to see his sweetheart. When Billy was twenty-two years old, his parents moved to Florida with the intent to make it their permanent home. A few months later, upon his graduation, Billy accepted a job with a traveling circus. The circus performs in approximately seventy-five cities each year, performing anywhere from two to five days in each city. The performers travel by train and stay in hotel rooms, which are paid for by the circus. Which of the following statements regarding Billy's domicile is most accurate?

A.  Billy is a New Jersey domiciliary because that was his domicile of origin and he never formed the requisite intent to remain in Pennsylvania indefinitely.

B.  Billy is a New Jersey domiciliary because after reaching the age of majority, he returned to New Jersey and became engaged to a New Jersey domiciliary, thereby forming the requisite subjective intent to change his domicile.

C.  Billy is a Pennsylvania domiciliary because upon his parents’ move to Pennsylvania, Billy became a Pennsylvania domiciliary and, since reaching the age of majority, Billy has not formed the requisite intent to change his state of domicile.

D.  Billy is a Florida domiciliary because his parents moved there with the intent to make it their permanent home and Billy has not formed the requisite intent to make any other state his permanent home.

E.  Billy is a United State citizen but he is not domiciled in any state because he does not intend to remain in any one state indefinitely.

5. Victor and Victoria, both citizens of Vermont, met at work, where Victoria was an attorney and Victor was an administrative assistant. They began dating in 1997. In 1999, Victor and Victoria decided to buy a house together. After the closing but before either of them had moved into the house, Victor informed Victoria that he would not move into the house unless they first got married. Victoria, whose assets were significantly greater than Victor's, stated that she would not marry Victor unless he signed a prenuptial agreement. Victoria moved into the house. Victor moved his belongings into the house, but he did not move in and went to live with his brother. Several months later, Victor and Victoria decided to get married in the United States Virgin Islands. Three days before the wedding, Victor and Victoria flew to the Virgin Islands. The morning of their wedding day, Victoria presented Victor with a prenuptial agreement, which Victor signed after only a cursory review of its terms and without the opportunity to obtain independent legal counsel. Neither party exchanged tax returns, bank statements or other financial documents prior to the execution of the agreement. The agreement provided that each party would retain as separate property whatever property each owned before the marriage and that each would retain as separate property whatever property each acquired during the course of the marriage as if the marriage had never been consummated. After the wedding and a lovely honeymoon, the couple returned to Vermont and moved into their home together, where they lived for the duration of their marriage. Victoria continued to work as an attorney and Victor continued to work as an administrative assistant. In 2006, Victor learned that Victoria was having an extra-marital affair. The couple separated and Victor sued Victoria for divorce in Vermont. Victor has approximately $30,000 in his bank account and Victoria has approximately $120,000 in her bank account. Victor seeks equitable distribution under Vermont law of all of the property owned by both spouses. In her answer, Victoria claims that the prenuptial agreement bars Victor from seeking any portion of the property that she acquired either before or during the marriage. Under Vermont law, a prenuptial agreement is not enforceable if the party against whom enforcement is sought proves that he or she "was not provided a fair and reasonable disclosure of the property or financial obligations of the other party." Under the law of the Virgin Islands, prenuptial agreements are treated the same as all other agreements and are "binding without regard to whether the terms were fully understood or whether full disclosure was made and irrespective of whether the agreement reached is substantively fair." Which statement is most accurate?

A. The Vermont court likely will decline to apply Virgin Islands law because it is different from forum law.

B. The Vermont court likely will decline to apply Virgin Islands law because it violates Vermont's public policy.

C. Even if the Vermont court concludes that it would violate its public policy to enforce a prenuptial agreement executed without full disclosure, it may choose to apply the Virgin Islands law that underlies Victoria's defense.

D. If the Vermont court applies governmental interest analysis to choose the substantive law to govern the parties' claims and defenses, it may choose Vermont law without the need to invoke a public policy exception.

E. Both C and D.

6. Bigco, an Arkansas corporation with its principal place of business in Arkansas, operates discount stores in every state in the nation. Before his discharge, Fred, a citizen of Pennsylvania, had been employed as a store manager at a Bigco store near Pittsburgh. Fred and a Bigco representative had executed Fred= s employment contract in Pittsburgh, Pennsylvania six years earlier. Many Bigco stores employ forklift operators, stockroom staff and security guards during the nighttime hours when the stores are closed to the public. Corporate management in Arkansas had instructed Fred and other Bigco store managers to lock all of the doors of the stores so that nighttime staff could not leave the building until their shifts were over (even though locking the doors in such a manner violated federal occupational safety laws). Afraid that his employees would not be able to exit the store in the event of a fire if the doors were locked and reluctant to violate federal law, Fred declined to lock the doors as instructed by management. Bigco's Senior Vice President flew to Pennsylvania to fire Fred when he learned of Fred's insubordination. Fred would like to sue Bigco for wrongful discharge. Assume that Arkansas adheres to the "at-will" employment doctrine, which permits an employer to fire an employee for any reason whatsoever or for no reason at all. Assume that Pennsylvania permits an at-will employee to sue for wrongful discharge if he or she is fired for refusing to violate a federal or state law. Assume that Bigco would be subject to personal jurisdiction in either Pennsylvania or Arkansas and that federal subject matter jurisdiction would be available. In which court should Fred initiate his lawsuit against Bigco?

A. A Pennsylvania state court, as long as that state applies governmental interest analysis as proposed by Professor Currie.

B. A federal court sitting in Pennsylvania, as long as Pennsylvania applies the First Restatement of Conflicts.

C. An Arkansas state court, as long as that state applies governmental interest analysis as proposed by Professor Currie.

D. A federal court sitting in Arkansas, as long as Arkansas applies governmental interest analysis as proposed by Professor Currie.

E. Both A and B.

7. Olive, a citizen of Ohio, asked her friend Brutus if he would like to go away for the weekend. Brutus, who also was a citizen of Ohio at the time, agreed. Olive offered to drive. Unbeknownst to Brutus, Olive had been drinking heavily before setting out on the trip. Shortly after picking Brutus up, Olive rammed the car into a telephone pole in Ohio. Brutus was seriously injured in the accident. Assume that Ohio has a guest statute, which would shield Olive from liability to Brutus. Brutus had been unemployed at the time of the accident. Realizing that it would take him months to recover and realizing that his finances were extremely tight in light of his unemployment, Brutus decided to move to Kentucky to live with his sister. Brutus became a Kentucky domiciliary. Kentucky has no guest statute. Brutus filed suit against Olive in a state court in Kentucky. Olive has no contacts with Kentucky, but because she made a general appearance in the Kentucky action, she waived any personal jurisdictional objection that she otherwise might have had. Which of the following statements in inaccurate?

A.  If Kentucky courts apply the First Restatement to choose the governing law in tort cases, the court likely will apply Ohio law.

B.  If Kentucky courts apply governmental interest analysis, the court likely will apply Kentucky substantive law because Kentucky has an interest in ensuring that Brutus receives full compensation for his injuries.

C.  The Kentucky court likely will apply Ohio substantive law because there is a strong argument that it would violate the Due Process Clause of the Fourteenth Amendment for the court to apply Kentucky law on the facts of the case.

D.  The Kentucky court likely will apply Ohio substantive law because there is a strong argument that it would violate the Full Faith and Credit Clause of Article IV for the court to apply Kentucky law on the facts of the case.

E.  Both C and D. 

8. Harry, a citizen of Illinois, went on-line to book a Hawaiian vacation. He found the web site of Hotelco, a nationwide chain of upscale hotels, which advertised a beautiful resort in Maui. Harry made the reservations on-line, flew to Hawaii and stayed on the Hotelco property. Harry rented a powerboat from a person he believed was a Hotelco employee but who actually was a concessionaire. The concessionaire negligently instructed Harry on the use of the powerboat and Harry was injured as a result. Harry commenced an action against Hotelco in the United States District Court for the Northern District of Illinois, seeking damages for the injuries he sustained in the Hawaiian accident. Assume that the court has personal jurisdiction over Hotelco and subject matter jurisdiction to resolve the claim. Further assume that under Illinois law, Hotelco may be vicariously liable for the negligence of the concessionaire on a theory of apparent authority (i.e., Hotelco created the impression that the powerboat concessionaire was its employee). Hawaii law does not extend the doctrine of apparent authority to torts. Hotelco moved to transfer the action pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the District of Hawaii, and the federal court in Illinois granted the motion. Which state's law should the federal court in Hawaii apply to determine whether Hotelco may be held vicariously liable on a theory of apparent authority?

1. The federal court in Hawaii should apply the same law that a state court in Illinois would apply.
2. The federal court in Hawaii should apply the same law that a state court in Hawaii would apply.
3. The federal court in Hawaii should craft a federal common-law choice of law rule to determine the applicable law.
4. Given the grave risk of horizontal disuniformity between federal district courts that apply different state laws, the federal court in Hawaii should craft a uniform federal rule regarding the extension of the doctrine of apparent authority to torts.
5. None of the above.

9. Sue, a citizen of Pennsylvania, was injured just outside of Scranton, Pennsylvania, when her car was struck by a car being driven by Mikael, a citizen of New Jersey who owns a vacation home in the Pocono Mountains in Pennsylvania. Mikael was driving 90 miles per hour at the time of the accident. Assume that under New Jersey law, in addition to compensatory damages, an automobile accident victim may recover an additional $25,000 for every mile per hour over the speed limit that a negligent driver was driving at the time of the accident. Since Mikael was traveling 25 miles per hour over the speed limit, Sue would be entitled to $625,000 in addition to her compensatory damages if New Jersey law were to apply. Sue sued Mikael in the United States District Court for Middle District of Pennsylvania, seeking compensatory damages in the amount of $50,000 plus $625,000 under the New Jersey statute. Mikael moved to dismiss the action for lack of subject matter jurisdiction, arguing that it appeared to a legal certainty that Sue could not recover in excess of $75,000 (the jurisdictional amount required by the diversity statute) because Pennsylvania tort law would govern her claim. For purposes of this question, assume that the Pennsylvania Supreme Court has recently reaffirmed its commitment to follow the First Restatement of Conflicts in torts cases. Mikael believes that the federal court sitting in Pennsylvania should have applied Pennsylvania substantive law and should have dismissed the complaint for lack of subject matter jurisdiction (because under Pennsylvania tort law, Sue states a claim for only $50,000). Notwithstanding the recent Pennsylvania choice-of-law precedent, the district court applied governmental interest analysis, concluding that New Jersey tort law applied because New Jersey has an interest in applying its tort law to all New Jersey citizens who cause automobile accidents. Since it did not appear to a legal certainty that Sue= s claim was for less than the jurisdictional amount (because under New Jersey law, she may recover $625,000 in addition to her compensatory damages), the district court concluded that it had subject matter jurisdiction to proceed. After a trial on the merits, the district court rendered a judgment for Sue in the amount of $675,000. No appeal was taken. Sue has now sued Mikael in state court in New Jersey to enforce the federal judgment against him. Mikael argues that the federal judgment is not entitled to recognition in New Jersey. Which statement is most accurate?

1. The New Jersey court will not recognize the federal judgment because the Full Faith and Credit Clause of the Constitution requires state courts to recognize the judgments of other state courts, not the judgments of federal courts.
2. The New Jersey court will not recognize the federal judgment because 28 U.S.C. § 1738, the Full Faith and Credit statute, requires federal courts to recognize state court judgments, but it does not require state courts to recognize federal court judgments.
3. The New Jersey court will not recognize the federal judgment because the federal court lacked subject matter jurisdiction to decide the case and therefore its judgment is not entitled to recognition.
4. The New Jersey court will recognize the federal judgment because Mikael litigated the issue of subject matter jurisdiction in the federal court in Pennsylvania and he is precluded from relitigating that issue again.
5. Both A and B.

10. Canco operates a smelting plant in British Columbia, Canada. The plant generates hazardous waste material, known as slag, including arsenic, mercury, lead and zinc. Canco discharges the slag directly into the Columbia River within the country of Canada. The slag is carried downstream by the river current into northeastern Washington State, where it has contaminated the environment. The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") is a federal law enacted by the United States Congress, which establishes a comprehensive scheme for the cleanup of hazardous waste sites and the imposition of liability for the cleanup costs on the parties responsible for the release of the hazard substance into the environment. Acting pursuant to its authority under CERCLA, the Environmental Protection Agency (the "EPA") ordered Canco to prepare a study to assess the northeastern Washington hazardous waste site, to evaluate remedial alternatives and to select a remedy for the clean-up of the site. Under CERCLA, "any person" who arranges for the disposal of hazardous substances that are released into the environment may be ordered to prepare such a study. Canco failed to comply with the EPA's order. Paul, a private citizen living in northeastern Washington, has filed suit against Canco in the United States District Court for the Eastern District of Washington under CERCLA's citizen suit provision. Paul's complaint seeks a declaration that Canco has violated the EPA's order and a mandatory injunction enforcing the order against Canco. Canco has moved to dismiss the complaint for failure to state a claim upon which relief can be granted, arguing that CERCLA may not be applied to a Canadian company that acted only in Canada. (You may assume that the district court has personal jurisdiction over Canco.) Which of the following statements is accurate?

1. In determining the territorial reach of CERCLA, the federal court must seek to ascertain and effectuate Congressional intent.
2. The court should presume that Congress did not intend to violate international law.
3. Congress may not violate international law by regulating the conduct of non-Americans acting beyond the territorial borders of the United States.
4. A and B.
5. A, B and C.

ESSAY QUESTION

(70 points)

Pamina, a citizen of Pennsylvania, was driving to North Carolina to visit her sister. While driving through West Virginia, Pamina shared the road with many other vehicles, including a truck that was hauling a load of large logs. The truck was owned and operated by David, a citizen of West Virginia. A sports car operated by Daniel, a citizen of Maryland, was weaving in and out of the traffic in a highly dangerous manner. While traveling ninety miles per hour, Daniel's sports car cut off David's truck. To avoid hitting Daniel's car, David's truck swerved sharply. When the truck swerved, its load shifted dramatically and six of the large logs fell off the truck and onto Pamina's car. Pamina's car was totaled and she was critically injured in the West Virginia accident. Daniel had rented the sports car from Rentalco, a West Virginia corporation with its principal place of business in Hagerstown, Maryland. Daniel had signed an automobile rental contract in Hagerstown. The rental contract contained the following clause: "This Agreement shall be governed by and construed in accordance with the laws of the State of West Virginia."

After months of hospitalization in West Virginia and additional months of physical therapy in Pennsylvania (once she was able to move home), Pamina is contemplating litigation to recover for the injuries and other losses she sustained as a result of the accident.

Pamina has retained an accident reconstruction expert, who will testify that the sudden swerve of the truck alone would not have caused the logs to fall off the truck if they had been properly secured when initially loaded onto the truck. David had loaded the logs onto the truck in Pennsylvania.

SUBPART A

(45 points)

For purposes of Subpart A only, assume that Pamina has decided to sue David to recover for the injuries and other losses she sustained as a result of the accident. West Virginia has a "no pay, no play" statute, which provides as follows:

There shall be no recovery for the first fifty thousand dollars of bodily injury and no recovery for the first twenty thousand dollars of property damage based on any cause of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability insurance.

Thus, under West Virginia law, an accident victim= s recovery is reduced (by $50,000 for personal injury and $20,000 for property damage) if the victim herself does not have automobile insurance. Pamina does not have motor vehicle liability insurance.

Pennsylvania law requires Pennsylvania citizens to obtain liability insurance if they own or operate a motor vehicle and makes it a misdemeanor punishable by a $500 fine and a suspension of driving privileges to drive without proof of insurance. The Pennsylvania House of Representatives debated a "no pay, no play" bill but declined to enact it. Several Pennsylvania legislators who spoke against the bill expressed concern that it would deprive innocent accident victims of complete recovery and could negatively impact the state economy. One legislator stated, "Yes, we want to ensure that Pennsylvania drivers obtain liability insurance. But no, we don't want the cure to be worse than the disease. The citizens who fail to purchase automobile insurance are typically those with the fewest resources. If we were to reduce their recovery if they were injured, these most vulnerable members of our community might not be able to pay for physical therapy or hospital care; they might be out of work even longer; and they might need to rely upon state-funded services and benefits."

Pamina would prefer to file suit against David in Pennsylvania because it would be more convenient for her, but she is prepared to file suit in West Virginia if it would afford her more favorable law. Further assume that Pennsylvania follows the First Restatement of Conflict of Laws while West Virginia applies governmental interest analysis and that the courts of both states can obtain personal jurisdiction over David. In which of the two jurisdictions should Pamina file suit against David? Discuss in detail your reasoning.

SUBPART B

(25 points)

For purposes of Subpart B only, assume that Pamina has decided to sue Rentalco to recover for the injuries and other losses she sustained as a result of the accident. A Maryland statute states:

Every owner of a motor vehicle shall be liable for injuries to person or property resulting from negligence in the use or operation of such vehicle by any person using or operating the same with the permission, express or implied, of such owner.

Thus, under Maryland law, an automobile owner is vicariously liable for the negligence of another person who was operating the vehicle with the owner's permission. Since Daniel was operating the sports car with Rentalco's permission, Rentalco would be vicariously liable if Maryland law were to apply (assuming, as appears to be the case, that Daniel's negligence was a proximate cause of the accident).

Under the common law of both West Virginia and Pennsylvania, an automobile owner is shielded from vicarious liability for the operator's negligence unless the operator of the vehicle is the owner's employee. Since Daniel was not Rentalco's employee, Rentalco would not be vicariously liable if either West Virginia or Pennsylvania law were to apply.

Pamina would like to sue Rentalco in the United States District Court for the District of Maryland. Further assume that Maryland applies the Second Restatement of Conflict of Laws. Which jurisdiction's law should the court apply to determine whether Rentalco may be held vicariously liable for the injuries and other losses Pamina sustained as a result of the accident? Discuss in detail your reasoning.