The battle cry of the choice of law revolution five decades ago railed against the inflexibility and unfairness of the lex loci delecti rule. In the watershed 1961 case of Kilberg v. Northeast Airlines,1 the New York Court of Appeals described the place of injury in an aviation death case as “entirely fortuitous” and refused to cap the plaintiff’s recovery by applying the damage limitation of a Massachusetts statute. Over the years, courts have frequently repeated the axiom that the place of injury in a plane crash is “largely fortuitous,”2 “most often fortuitous”3 or “almost always fortuitous”4 and therefore should be given less weight in determining the choice of law. Yet, courts have not clearly defined what constitutes a “fortuitous” accident for choice of law purposes. To this day, the application of the fortuitous place of injury rule remains inconsistent and unpredictable.
Considerations
The classic “fortuitous” crash site occurs when a plane crossing through numerous jurisdictions crashes in a random location. Thus, the liability issues in litigation involving a United Airlines flight from Denver to Chicago that suffered a sudden mid-flight mechanical failure and crash landed in Iowa were properly governed by laws other than Iowa, the lex loci.5 Similarly, the U.S. Court of Appeals for the Second Circuit held that the location of the terrorist bombing of Pan Am flight 103 over Scotland on a flight from London to New York was “random” and applied the law of each passenger’s domicile to the issue of damages.6
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