The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
This memorandum opinion addresses only the question of whether the Japanese Product Liability Law of 1994 applies to this action. Utilizing Illinois choice of law rules, I conclude that Illinois state law governs any private rights of action involved in the case. I expressly leave open for another day the question of federal preemption.
Plaintiff Terrence Pestel, an Illinois citizen, has been an airplane
pilot since 1968. He has flown primarily civilly and commercially, but
he also served as a military pilot in the Vietnam war.*fn1
In the time frame relevant here, Pestel was employed by the
McDonald's Corporation as a pilot for its executive fleet of aircraft.
On December 21, 2002, Pestel was the pilot for a G-IV executive aircraft owned by McDonald's and built by Gulfstream Aerospace Corporation ("Gulfstream" or "Defendant"). He was set to pilot the Tokyo to Anchorage leg of a flight that had originated in Illinois and was ultimately set to return to Illinois (McDonald's is headquartered in Oak Brook, Illinois). While on the tarmac at Narita New Tokyo International Airport, Pestel began his pre-flight inspection of the aircraft. After conducting a portion of the check involving an aft compartment of the plane, he descended a retractable ladder that is installed in the aircraft, lost his footing, and fell, causing substantial injuries. Pestel ultimately lost his pilot's license because he has been unable to pass the required medical examinations based on his injuries.
Plaintiff sued Defendant (a Georgia corporation headquartered in Georgia), the manufacturer of the aircraft, in a previous matter. That matter was dismissed without prejudice, and this present case was thereafter filed on September 30, 2009. The new case is substantially the same as the old one, with the exception of a new claim brought under the Japanese Product Liability Law of 1994.
Defendant moves for summary judgment as to all counts. Plaintiff moved to have me first consider a conflict of laws question centered around the viability of Plaintiff's claim under the Japanese product liability law. I granted that motion, and having done so I find that Japanese law does not apply to this case; Illinois law does.
I expressly leave for a later date the question of whether Illinois law is, in turn, preempted by federal law. I note here that Defendant's briefing on the current motion is couched in choice-of-law language, but it argues that United States federal law should govern. This is preemption, an issue I leave open for another day. See Desiano v. Warner-Lambert & Co., 467 F.3d 85, 88 n. 2 (2d. Cir. 2006) (noting with approval district court judge's consideration of choice-of-law provision before preemption).
In determining which jurisdiction's law applies, I employ Illinois choice-of-law principles. Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 496 (1941); Carris v. Marriott International, Inc., 466 F.3d 558, 560 (7th Cir. 2006). Illinois uses the "most significant relationship" test from the Second Restatement of Conflicts of Laws. See Esser v. McIntyre, 661 N.E.2d 1138, 1141 (Ill. 1996); accord Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915-916 (7th Cir. 2006). For tort issues, the test outlines four key factors in making the choice: "(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." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145. The factors are to be evaluated according to their relative importance with respect to the particular issue. Id. The factors are to be considered in light of seven conflicts principles: (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. Id. at § 6.
The test is sometimes conceived of as a presumption - reduced from the previously rigid rule of lex loci delicti*fn2 - that the law of the place of the tort is the law that should govern. Kamelgard v. Macura, 585 F.3d 334, 341) (7th Cir. 2009). The injury here took place at Narita New Tokyo International Airport in the country of Japan, so the going-in assumption must be that Japanese law applies.
But presumptions can be overcome, and analysis of the factors as
applied in this case point away from Japanese law. It is true that the
injury took place in Japan, while the airplane
was on a tarmac at the Narita airport. The first factor clearly
points to Japan. The conduct that caused the injury took place half a
world away, in Georgia, where the G-IV was manufactured and the ladder
installed.*fn3 Moving to the third factor, Plaintiff
is an Illinois citizen. Gulfstream Aerospace is a Georgia Corporation
with its principal place of business in Georgia. McDonald's
Corporation, which intervened to secure a lien on a workmen's
compensation claim, is incorporated in Delaware but headquartered in
Illinois. The nationality of the parties (which according to the
Restatement is to be considered in addition to the domicile) is
American, not Japanese. Finally, Illinois is the place where the
relationship between the parties is centered. This is because at the
time Plaintiff was injured, he worked for the McDonald's Corporation,
based out of their Illinois headquarters. McDonald's owned the G-IV at
issue, and Plaintiff flew the aircraft as a pilot based out of
So we are left with Japan, Georgia, and Illinois as candidate sources
of law. Japan as the situs of the injury was the presumptive choice,
but the fact that Plaintiff tumbled down a ladder built into an
aircraft that happened to be on a tarmac there is merely "fortuitous."
By all accounts, the plane was on the ground in Tokyo for a matter of
hours as part of a round trip to and from the United States, and
specifically Illinois. Though from different states, all parties are
nationals of the United States. In Schulze v. Illinois Highway Transp.
Co., 423 N.E.2d 278 (Ill. App. Ct. 1981), the Illinois Appellate Court
determined that when a bus operated by defendants from Illinois and
occupied by plaintiffs who were also from Illinois was involved in an
accident in Michigan, Illinois tort law still applied. The court
emphasized the round-trip nature of the
journey and found the fact that Michigan was the situs of injury
was merely "fortuitous." Schulte is one in a line of cases where
accidents involving either aircraft or automobiles on long or round
trip journeys lead to the conclusion that the situs of the injury is
not of significant importance. See Labuda v. Schmidt, 2005 U.S. Dist.
LEXIS 20948 (N.D. Ill. Sept. 19, 2005) (discussing fortuity and citing
cases). In fact, it was these sorts of cases that prompted Illinois
and other states to move away from lex loci. See id. (discussing
Ingersoll v. Klein, 262 N.E.2d 593, 595 (Ill. 1970)).
Given the nature of the claims here, which in simple terms point to Gulfstream's installation of a dangerous ladder, the fact that the plane (and hence, the ladder) at issue were merely parked briefly in ...