Torts: The Case of the Injured Wife

One June night in 1964, Albert Clark of Lancaster, N.H., was driving his wife to a bowling alley in Littleton, N.H. Although the towns are only 15 miles apart, the best road between them swings into Vermont, where Clark had an accident in which his wife was injured. Which law governed — that of Vermont or New Hampshire?

The question arose because Mrs. Clark was forced to sue Mr. Clark in order to stake her $50,000 claim against his insurance company. It was a suit the company confidently expected to win. Even though Mrs. Clark had to file her suit in her home state of New Hampshire, the company well knew that in choice-of-law conflicts, New Hampshire courts had long followed the law of “the place where the injury occurred.” And Vermont is one of the 28 states with a “guest statute,” holding that a “host” driver is liable to his “guest” passengers only if their injuries are caused by his “gross and willful negligence.” In New Hampshire, which has no guest statute, a guest may recover if his injuries are caused by his host’s simple “lack of ordinary care under the circumstances.”

Spirit of the Times. Anxious to sue under New Hampshire law, Mrs. Clark’s lawyer requested a pretrial look at the “place of injury” doctrine. As a result, New Hampshire’s approach to choice of law has been drastically revised. From now on, said State Supreme Court Chief Justice Frank R. Kenison, New Hampshire will defer to whichever state offers “the sounder rule of law.”

In Mrs. Clark’s case, said Kenison, “our rule is preferable to that of Vermont. The automobile guest statutes were enacted in about half the states, in the 1920s and early 1930s, as a result of vigorous pressures by skillful proponents,” meaning insurance companies.

Though still on the books, guest statutes “contradict the spirit of the times.” In Clark v. Clark, at least, New Hampshire holds that a driver’s liability to his passengers shall be “determined by the local law of their common domicile, if at least this is the state from which they departed on their trip and that to which they intended to return.” Which means that Mrs. Clark may now sue Mr. Clark under New Hampshire law.

And to win, she need not prove that he was reckless, only that he was careless.