to be considered on a case-by-case basis with respect to the particular issue involved, the character of the tort, and the relevant policies of the interested states. Pittway, 641 F.2d at 526-27. The general guiding principles are: "(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied." Restatement § 6(2).
Courts that have applied the significant relationship test, or other similar tests, in the context of dram shop liability have been split as to whether to apply the law of the place of sale or the place of the accident. See Pardey v. Boulevard Billiard Club, 518 A.2d 1349, 1352 (R.I. 1986) (applying law of place of sale); Patton v. Carnrike, 510 F. Supp. 625, 628 (N.D.N.Y. 1981) (same); Trapp v. 4-10 Investment Corp., 424 F.2d 1261, 1265 (8th Cir. 1970) (same); Carver v. Schafer, 647 S.W.2d 570, 578 (Mo. Ct. App. 1983) (applying law of place of accident); Blamey v. Brown, 270 N.W.2d 884, 890-91 (Minn. 1978), cert. denied, 444 U.S. 1070, 62 L. Ed. 2d 751, 100 S. Ct. 1013 (1980) (same);
Bernhard v. Harrah's Club, 16 Cal. 3d 313, 546 P.2d 719, 725, 128 Cal. Rptr. 215, cert. denied, 429 U.S. 859, 50 L. Ed. 2d 136, 97 S. Ct. 159 (1976) (same); Annotation, Choice of Law as to Liability of Liquor Seller for Injuries Caused by Intoxicated Person, 2 A.L.R.4th 952, 961-63 (1980). These cases have generally considered the particular facts and circumstances involved and the particular policies of the states involved. Perhaps more significantly, all those cases that have applied the law of the place of the accident were cases where the law of the place of sale provided for no liability whereas the place of the accident provided a cause of action. Those cases also involved application of the common law of the place of the accident, not the application of a statute.
Consideration of the four factors separate from the guiding principles produces an equal balance. The place of injury being Indiana is equally balanced by Illinois being the place of the allegedly improper conduct of Brandon. Sommers's residency in Indiana is equally balanced by Brandon's incorporation and principal place of business in Illinois. The parties had no direct relationship so their relationship cannot be said to be centered in either state. Viewed in light of the guiding principles, however, the balance favors applying Indiana law.
Where, as in the present case, the place of injury is a fortuitous event, that factor is given less weight. See Pardey, 518 A.2d at 1352; Patton, 510 F. Supp. at 628; Restatement § 145 comment e. Still, Indiana has a strong interest in the events since a resident of its state was injured in Indiana. Indiana has an interest in both protecting the well-being of its residents and in ensuring that injured residents can continue to pay their creditors. See Carver, 647 S.W.2d at 577. Illinois, on the other hand, has an interest in protecting its tavern owners from excessive judgments. See id. While Illinois limits the liability of its tavern owners, Ill. Rev. Stat. ch. 43, para. 135(a), it does not immunize them from liability. Compare Restatement § 146 comment e. It is the policy of Illinois that its tavernkeepers be held liable for injuries caused by patrons whom the tavernkeepers cause to be intoxicated. To the extent Indiana law would make Brandon liable, applying Indiana law would be consistent with Illinois policy. See Pardey, 518 A.2d at 1352. Cf. Bernhard, 546 P.2d at 725. Also, that Illinois applies its Dram Shop Act to sales outside Illinois that cause injury in Illinois, implies that Illinois would approve of other states imposing liability for injuries occurring in the other states but caused by sales of alcoholic beverages in Illinois. Additionally, the Beacon Tavern is located near the Illinois-Indiana border.
Thus, it would not be a surprise to defendant that some of its patrons travel in Indiana after drinking at the tavern. The application of Indiana law would not be unexpected or unpredictable.
See Carver, 647 S.W.2d at 578; Bernhard, 546 P.2d at 725.
For the foregoing reasons, Indiana has the more significant relationship. In any event, there is no sufficient basis for overcoming the presumption that the place of personal injury is determinative. In following Illinois's choice of law rules, this court will apply the substantive law of Indiana to the claim of plaintiff against defendant Brandon.
The question still remains as to whether Indiana law provides a cause of action for plaintiff. Plaintiff cites Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1219-20 (Ind. 1988), for the proposition that Indiana provides a common law cause of action for dram shop liability. As Picadilly, 519 N.E.2d at 1220 n.1, notes, however, that decision concerns an accident occurring prior to the April 1, 1986 effective date of Ind. Code § 7.1-5-10-15.5. The events alleged in the present complaint occurred in February 1987. The new statute essentially codified the existing common law. See Todd & Yosha, Dram Shop Liability in Indiana: Analysis of Ashlock v. Norris & the New Civil Statute, 19 Ind. L. Rev. 417, 419-23 (1986). No cases have yet interpreted that statute, but there is nothing in it that indicates it is limited to sales in Indiana.
The statute simply refers to " A person who furnishes an alcoholic beverage." Ind. Code § 7.1-5-10-15.5(b) (emphasis added).
Unlike the continuing law in Illinois, there is a modern trend to apply dram shop acts extraterritorially as regards sales in the state and accidents outside the state. See Pardey, 518 A.2d at 1352. A trend toward applying dram shop acts to accidents within the state, but regarding sales outside the state, has not appeared. See Thoring v. Bottonsek, 350 N.W.2d 586, 589-91 (N.D. 1984). The 1986 amendment to Illinois's act, however, provides for such liability. See Ill. Rev. Stat. ch. 43, para. 135(a). Also, the modern trend has been to apply common law liability under such circumstances and that is what was done in Waynick, supra, and Colligan, supra. The modern trend has also been toward choosing the law that would impose liability. Since Indiana's statute applies to any "person who furnishes", not just to regulation of taverns, and since it is a codification of the common law, it is believed that Indiana would apply § 7.1-5-10-15.5(b) to sales outside Indiana and accidents in Indiana. Also, to the extent Indiana law is uncertain, the court should consider Illinois law. Colligan, 187 N.E.2d at 296. Illinois clearly provides that its act applies to sales outside Illinois and accidents in Illinois. It is therefore held that § 7.1-5-10-15.5 applies to Sommer's claim against Brandon. Alternatively, if that statute does not apply to the claim, then the common law of Indiana has not been supplanted by statute. Sommers would then have a common law cause of action and it is believed Indiana would follow the modern trend of holding there is a common law cause of action for sales outside the state where the accident occurred.
For the foregoing reasons, it is held that Sommer's claim against Brandon is governed by the statutory law of Indiana, in particular Ind. Code § 7.1-5-10-15.5.
IT IS THEREFORE ORDERED that:
(1) Defendant 13300 Brandon Corporation's motion to dismiss is denied.
(2) Defendant 13300 Brandon Corporation shall answer the complaint by May 23, 1989.
(3) Discovery is to be completed by September 7, 1989.
(4) A status hearing is set for June 7, 1989 at 9:15 a.m.
Dated: May 9, 1989