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Abstract

How does a court go about determining which jurisdiction’s substantive law applies to the parties in a particular dispute? Usually, the resolution of this question is straightforward: if the parties are from one jurisdiction and the event giving rise to the lawsuit occurred entirely within that jurisdiction, then that jurisdiction’s substantive law applies. However, when the parties are domiciled in one state, but the entirety of the liability-producing event occurred in another state (i.e., a multi-state tort), courts will apply one of several approaches to determine which substantive law applies. Some courts apply a flexible approach that evaluates the factual scenario of the case, while other courts apply the Lex Loci Delicti, or the “place of the wrong” rule. Relevant here, Virginia has adopted the Lex Loci Delicti rule in the context of multi-state torts.

Further distinct from multi-state torts, the Virginia Supreme Court recently addressed the issue of which state’s substantive law applies to a crossborder tort. Cross-border torts occur when the elements of a tort are split amongst multiple states. In Hazlewood v. Lawyer Garage, LLC, the court applied the Lex Loci Delicti rule to cross-border torts and held that the “last act” giving rise to liability determines which state’s substantive law applies. In Hazelwood, the defendant’s alleged tortious conduct took place exclusively in Virginia, but the plaintiff was injured in Arizona; thus, the court applied Arizona’s substantive law to the parties.

This Article argues that the court’s decision in Hazlewood and the Lex Loci Delicti rule, as applied to cross-border torts, produces an unworkable result. Namely, the applicable substantive law is determined solely based on happenstance alone: the geographic location of the plaintiff at the time of injury. Instead, the court should adopt the approach taken by the Restatement (Third) Conflict of Laws, which considers more than simply the place of the harm or the last act giving rise to the claim. Rather, it focuses on the facts of the case, the elements of the tort at issue, and the parties’ domicile. Accordingly, when another cross-border tort case comes before the Virginia Supreme Court, the court should abandon the antiquated Lex Loci Delicti rule and instead adopt the Third Restatement’s approach.

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