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TONKON v. DENNY'S

December 22, 1986

LAURA TONKON and SEYMOUR TONKON
v.
DENNY'S, INC.



The opinion of the court was delivered by: CAHN

 This is a diversity action to recover damages for injuries suffered in a fall on a public sidewalk outside "Denny's" restaurant in Mexico City, Mexico. Plaintiffs, husband and wife, are Pennsylvania citizens. Defendant, a California corporation subject to jurisdiction in this court because of its business activities in Pennsylvania, is a 20% owner of Denny's, S.A. de C.V. ("S.A. de C.V."), a Mexican company which has licensed the use of the "Denny's" name from the defendant. S.A. de C.V. owns and operates the "Denny's" restaurant in Mexico City.

 Plaintiffs claim that the defendant is liable for its licensee's alleged failure to properly maintain the sidewalk near the restaurant. Defendant has moved for summary judgment or, in the alternative, for dismissal on the ground of forum non conveniens. Because I find that Mexican law governs this action I will defer ruling on the defendant's motion until both parties are given an opportunity to prove the content of Mexican law under Federal Rule of Civil Procedure 44.1.

 The factual context, viewed in the light most favorable to the plaintiffs, can be briefly stated. While vacationing in Mexico City, plaintiff Laura Tonkon suffered a broken hip when she fell on the crowded public sidewalk outside "Denny's" after patronizing the restaurant. Mrs. Tonkon was hospitalized for about two weeks in Mexico, where she underwent surgery twice, before returning to the United States where a third operation was performed. Her hip had to be replaced and she remains permanently disabled. Plaintiffs, however, did not notify the Mexican police or any of the restaurant employees of the accident, and defendant and its licensee were apparently unaware of the incident until this suit was filed two years later.

 Plaintiff claims that her fall was caused by a hole in the sidewalk located about eight feet to one side of the restaurant's entrance. The hole, approximately 10 inches square and several inches deep, was created by the absence of one of the cement tiles which formed the sidewalk. There is only one entrance to the restaurant which leases its space on the first floor of a multi-tenant four-story building from a third party.

 Three issues are presented by the defendant's motion: what body of substantive law should be applied; is the defendant entitled to summary judgment under the applicable law; and whether this court is an appropriate forum for this action. Defendant contends that Mexican law should govern all of the substantive issues in this action. I agree. A federal court exercising diversity jurisdiction applies the choice of law rules of the forum state in order to determine which law governs the substantive issues before it. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941).

 In tort actions Pennsylvania has abandoned the rule that the law of the place of injury governs substantive issues in favor of a flexible rule which requires analysis of the policies and interests underlying the issues before the court. Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964). This approach seeks to give to the place having the most interest in the problem paramount control over the legal issues arising out of the particular factual context. Id. at 22, 203 A.2d at 806. See Blakesley v. Wolford, 789 F.2d 236 (3d Cir. 1986); Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970).

 One method used by the Pennsylvania courts to determine which state has the greater interest in the application of its law is to analyze qualitatively the contacts each state has with the accident. Cipolla, 439 Pa. at 566, 267 A.2d at 856. Contacts considered vital to this analysis include, but are not limited to, place of injury, place of conduct, domicile of the parties, and the place where the relationship between the parties is centered. Griffith, 416 Pa. at 15, 203 A.2d at 802-3. Consideration of these contacts and the general interests of Mexico and Pennsylvania clearly compels a finding that Mexico has the greater interest in this action.

 Analyzing the relevant contacts, the only significant contact Pennsylvania has with this injury is the domicile of the plaintiffs. Mexico is the site of the injury and the alleged failure to properly maintain the sidewalk. Mexico is also the domicile of the licensee whose duty is at issue.

 Plaintiffs claim that the place where the injury occurred was purely fortuitous because they had not gone to Mexico City with the intent of visiting the Denny's restaurant. This argument is without merit. The point is that plaintiffs voluntarily and intentionally travelled to Mexico. When a party voluntarily and intentionally travels to another state, the location of an injury incurred there is not fortuitous. See Blakesley, 789 F.2d at 249. In Blakesley, the court noted the importance of the place of injury:

 
Cases applying the Griffith/Cipolla test make clear that where, as here, the place where the injury occurred was not fortuitous, as for example, in an airplane crash, the place of injury assumes much greater importance, and in some instances may be determinative. See Broome v. Antlers' Hunting Club, 595 F.2d 921, 924 (3d Cir. 1979) and cases cited therein.

 Id. at 243.

 Plaintiffs also claim that the relationship between the parties is centered in Pennsylvania because that is where the parties first met through the plaintiffs' visits to local "Denny's" restaurants and where defendant, through its advertisements, invited the defendants to visit Denny's restaurants wherever they may be located. I disagree. This case does not involve the type of "continuing relationship" which should justify the application of the law of the state in which the parties first had contact.

 The relationship between the parties for the purpose of this action began and ended in Mexico when the plaintiffs patronized the restaurant. Whatever duty was required of the licensee arose by virtue of the plaintiffs' status as business invitees, not the licensor's prior dealings. The mere fact that the plaintiffs had previously visited a "Denny's" ...


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