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CANNON v. HILTON HOTELS CORP

March 16, 1987

Pamela M. Cannon, Admx. and Personal Representative of the Estate of Brent E. Cannon, Deceased, on behalf of Decedent's heirs-at-law and next-of-kin, and on her own behalf
v.
Hilton Hotels Corp: American Hoist & Derrick Co.; Tishman Construction Corp. of New Jersey; Fellow Read & Associates; Atlantic City Electric Co.; John Carl Warnecke & Associates, Inc.; and The Home Group



The opinion of the court was delivered by: O'NEILL

 O'NEILL, J.

 This is a wrongful death and survival action arising out of the electrocution of Brent E. Cannon on August 30, 1983, during the course of his employment, when the crane which he was operating came in contact with a power line on the Atlantic City Hilton Hotel and Casino construction site in Atlantic City, New Jersey. Plaintiff, decedent's wife, brings this action against Hilton, the site owner; Tishman, the contractor; American Hoist & Derrick, the crane manufacturer; Fellows Read & Associates, the site engineer; John Carl Warnecke & Associates, the architect; Atlantic City Electric, owner of the power line; and The Home Group, an insurance company. Ole Hansen and Sons, decedent's employer, has been joined as a third party defendant. Jurisdiction is based upon diversity of citizenship and the amount in controversy exceeds $10,000. 28 U.S.C. § 1332.

 The parties have agreed that I should determine, at this stage of the proceedings, whether the damages law of New Jersey or Pennsylvania applies to this case. They also have stipulated to the facts which they deem relevant to this determination. As the wrongful death statutes of the two states are identical, the parties' briefs have focused upon which state's survival act should apply. *fn1" The New Jersey Act allows damages for pain and suffering and lost earnings accruing between the time of injury and death. N.J.S.A. 2A:15-3. The Pennsylvania Act allows such damages but also permits recovery for net loss of future earnings. 20 Pa. C.S.A. § 3371; Skoda v. West Penn Power Co., 411 Pa. 323, 335, 191 A.2d 822, 829 (1963); see Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980).

 I must apply the choice of law rules of the forum state, Pennsylvania, to determine which state's law applies. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). In Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court abandoned the strict lex loci delicti choice of law rule in favor of a "more flexible rule which permits analysis of the policies and interests underlying the particular issue before the Court." 416 Pa. at 21, 203 A.2d at 805. The Court adopted this approach because it allowed the "forum to apply 'the policy of the jurisdiction' most intimately concerned with the outcome of [the] particular litigation'." Id. at 22, 203 A.2d at 806 (citing Auten v. Auten, 308 N.Y. 155, 161, 124 N.E. 2d 99, 102). In Cipolla v. Shaposka, 439 Pa. 563, 566, 267 A.2d 854, 856 (1970), the Court explained that particular contacts between a state and an accident are relevant to determining which state has the greater interest in applying its law only if they relate to the "policies and interests underlying the particular issue before the Court." The Court cautioned that

 
[A] mere counting of contacts is not what is involved. The weight of a particular state's contacts must be measured on a qualitative rather than a quantitative scale.

 Id. See also, Myers v. Commercial Union Assurance Cos., et al., 506 Pa. 492, 496-497, 485 A.2d 1113, 1115-1116 (1984).

 According to the Third Circuit, Griffith combines the approaches of "interest analysis" and of the Restatement (Second) of Conflict of Laws. Blakesley v. Wolford, 789 F.2d 236, 239 (3d Cir. 1986). Interest analysis involves a qualitative appraisal of the relevant states' policies regarding the controversy. Section 145 of the Restatement provides that the rights and liabilities of the parties regarding an issue of tort law are determined by the law of the state with the "most significant relationship" to the issue. The contacts to be evaluated in determining which state has the most significant relationship are:

 
(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.

 The Third Circuit first looks to the policies and interests advanced by each state's rules and, second, considers the states' relevant contacts to those interests. Blakesley, 789 F.2d at 239.

 I have not found a decision of any court applying the Pennsylvania choice of law rules to the question whether the Pennsylvania or the New Jersey Survival Act should apply in a particular case. I have reviewed several decisions from the District of New Jersey addressing the issue under New Jersey choice of law principles. See, Mathis v. Motley, 649 F. Supp. 38 (D.N.J. 1986); Pollock v. Barrickman, 610 F. Supp. 878 (D.N.J. 1985); Nolan v. Foundations and Structures, No. 83-1372 (D.N.J. April 19, 1984) Colley v. Marina, 422 F. Supp. 953 (D.N.J. 1976); Foster v. ...


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