The opinion of the court was delivered by: Lynne A. Sitarski United States Magistrate Judge
Presently before this Court is Defendant Cornell University's ("Cornell") Motion to Establish Applicable Law (Doc. No. 170), Plaintiff Randall Duchesneau's ("Plaintiff") partial opposition thereto (Doc. No. 176),*fn1 Cornell's reply (Doc. No. 185), and Plaintiff's surreply (Doc. No. 194). By Order dated October 25, 2011, the Honorable C. Darnell Jones referred this motion to the undersigned for disposition. As more fully set forth herein, Cornell's motion is GRANTED IN PART, and DENIED IN PART.
The underlying litigation arises out of an accident that occurred on October 12, 2006 on the campus of Cornell University in Ithaca, New York. At the time of the accident, Plaintiff was a twenty-one years old Pennsylvania resident.*fn2 Plaintiff was utilizing a TumblTrak gymnastic tumbling training apparatus located in the Teagle Gymnasium on the Cornell campus.*fn3 When Plaintiff attempted to perform a standing back flip on the TumblTrak, he landed squarely in the center of the apparatus, causing him to suffer catastrophic, permanent spinal injuries, which have rendered him a quadriplegic, totally dependant on a motorized, reclined wheelchair. As a result of this accident, Plaintiff initiated litigation against Cornell, Cornell Gymnastics Club, and TumblTrak, asserting negligence and products liability.*fn4 (Doc. No. 1).
On October 7, 2011, Cornell filed this Motion to Establish Applicable Law, arguing that New York law should apply to all issues in this case. (Doc. No. 170). Plaintiff filed his response on October 24, 2011, asserting that although New York applies to the majority of the issues, Pennsylvania law should apply to one issue: the effect of willful or wanton conduct upon the application of comparative negligence. (Doc. No. 176). Plaintiff also contends that Cornell's the motion is premature to the extent it seeks a choice of law determination on the issue of compensatory damages. Cornell filed a reply to Plaintiff's response on November 11, 2011. (Doc. Nos. 185 - 186). Plaintiff filed a surreply on November 15, 2011. (Doc. No. 194).
This court has jurisdiction over Plaintiff's state law claims based upon diversity of citizenship. In diversity cases such as this one, the choice of law rules of the forum state (i.e., Pennsylvania) apply. See Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226 (3d Cir. 2007) (citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941)). The seminal Pennsylvania choice of law case is Griffith v. United Air Lines, Inc., 203 A.2d 796 (Pa. 1964), in which "the Pennsylvania Supreme Court expressly abandoned the 'lexi loci delicti' rule 'in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.'" Hammersmith, 480 F.3d at 227 (quoting Griffith, 203 A.2d at 805). "Under this new approach, Pennsylvania courts are to apply the law of the forum with the 'most interest in the problem,' rather than the law of the place of the injury." Id. (citing Griffith, 203 A.2d at 806). Importantly, "[b]ecause choice of law analysis is issue-specific, different states' laws may apply to different issues in a single case, a principle known as 'depecage.'" Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006); see also Taylor v. Mooney Aircraft Corp., 265 Fed. Appx. 87, 91 (3d Cir. 2008) (predicting that Pennsylvania courts would utilize depecage).*fn5
Under this analysis, the first step is to "determine whether there is 'an actual or real conflict between the potentially applicable laws.'" Van Doren v. Coe Press Equip. Corp., 592 F. Supp.2d 776, 782 (E.D. Pa. 2008) (quoting Hammersmith, 480 F.3d at 229-30). "If the jurisdictions' laws differ in relevant ways, 'then the court should examine the governmental policies underlying each law, and classify the conflict as 'true,' 'false,' or an 'unprovided for' situation.'" Id. (quoting Hammersmith, 480 F.3d at 229-30). A "true" conflict exists if both jurisdictions' interests would be impaired by the application of the other's laws. Hammersmith, 480 F.3d at 230. A "false" conflict exists "'if only one jurisdiction's governmental interests would be impaired by the application of the other jurisdiction's law.'" Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 220 (3d Cir. 2005) (quoting Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir. 1991)). "An 'unprovided-for' case is one in which neither state's interests would be impaired if its laws were not applied." Hammersmith, 480 F.3d at 230 n.9 (citing Garcia, 421 F.3d at 220).
"The choice of law analysis continues past that point only if the Court finds that there is a 'true' conflict, namely if 'both jurisdictions' interests would be impaired by the application of the other's laws.'"*fn6 Van Doren, 592 F. Supp.2d at 782(quoting Hammersmith, 480 F.3d at 229-30). "If a true conflict exists, then the court must determine 'which state has the greater interest in the application of its law.'" Id. "This analysis requires more than a 'mere counting of contacts.'" Hammersmith, 480 F.3d at 231 (quoting Cipolla v. Shaposka, 267 A.2d 854, 856 (Pa. 1970)). "'Rather, we must weigh the contacts on a qualitative scale according to their relation to the policies and interests underlying the [particular] issue.'" Id. (quoting Shields v. Consol. Rail Corp., 810 F.2d 397, 400 (3d Cir. 1987))."The federal courts of the Third Circuit have interpreted Griffith to mean that a court applying Pennsylvania law should use the Second Restatement of Conflict of Laws as a starting point, and then flesh out the issue using an interest analysis." Berg, 435 F.3d at 463.
The Second Restatement utilizes different approaches depending upon the substantive law at issue; accordingly, a court must "first characterize the particular issue before the court as one of tort, contract, or corporate law -- or some hybrid -- in order to settle on a given section of the Restatement for guidance." Id. In the case sub judice, Restatement (Second) of Conflict of Laws § 145 applies. Section 145 "established the 'general principles to be applied and contacts to be taken into account in choice of law determinations in tort actions.'" See Van Doren, 592 F. Supp.2d at 785 (quoting Blakesley v. Wolford, 789 F.2d 236, 239 (3d Cir. 1986)). Section 145 states:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.*fn7
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the ...