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NO. COA97-1161
NORTH CAROLINA COURT OF APPEALS
Filed:  18 August  1998
FREDRICK GBYE, Individually and as Administrator of the Estate of
MARQUEZEYON GBYE,
Plaintiff-Appellant,
v.
DORIS GBYE,
Defendant-Appellee.
Appeal by plaintiff-appellant from order entered  10 July
1997 by Judge James C. Spencer, Jr. in Alamance County Superior
Court.    Heard in the Court of Appeals  30 April  1998.
J. Rufus Farrior, P.A., by J. Rufus Farrior, for plaintiff-
appellant.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Jack M.
Strauch,    for defendant-appellee.
WYNN, Judge.
In actions arising in tort, the doctrine of lex loci
deliciti
provides that the law of the state where the tort was allegedly
committed controls the substantive issues of the case.    Terry v.
Pullman Trailmobile,  92 N.C. App.  687,  376 S.E.2d  47  (1989).
Because the accident in which the minor daughter was killed
occurred in Alabama, a state which provides parents with immunity
from suit by their children, we hold that the trial court
properly dismissed the wrongful death action by the child’s
estate against the child’s mother.
On  3 June  1995, the mother in this action, a resident of




Alamance County, North Carolina, drove her automobile through
Baldwin County, Alabama with her two minor daughters riding in
the back seat when her vehicle was involved in an one car
accident killing her youngest daughter.
As a result of the child’s death, the child’s father brought
this wrongful death action against his wife in Alamance County
Superior Court on behalf of his daughter’s estate.    The mother
answered, moving to dismiss the wrongful death claim on the
ground that the rule of lex loci deliciti required that Alabama’s
parental immunity doctrine be applied to bar her husband’s claim
against her on behalf of his daughter.    The trial court agreed
and dismissed the action for failure to state a claim upon which
relief could be granted under Rule  12(b)(6).    From that order,
this appeal followed.
On appeal, the child’s estate contends that the trial court
erred in applying Alabama’s parental immunity law to bar this
wrongful death action.    According to the child’s estate, the
trial court should have applied the law of this State, which has
specifically abolished parental immunity in cases involving motor
vehicle accidents, see N.C. Gen. Stat.  §  1-539.21  (1991), not the
law of Alabama.    We disagree.
Under traditional rules of conflict law, matters affecting
the substantive rights of the parties are determined by lex loci
deliciti, the law of the situs of the claim.    Boudreau v.
Baughman,  322 N.C.  331,  335,  368 S.E.2d  849,  853-54  (1988)(citing
Charnock v. Taylor,  223 N.C.  360,  26 S.E.2d  911  (1943)).    For




actions arising in tort, it is well-settled that the state where
the injury occurred is considered the situs of the claim.    Id.
"Thus, under North Carolina law, when the injury giving rise to a
negligence or strict liability claim occurs in another state, the
law of that state governs resolution of the substantive issues in
the controversy."    Id.  (citations omitted).
In this case, the automobile accident which killed the child
occurred in Baldwin County, Alabama.    Therefore, under the rule
of lex loci deliciti, Alabama law, which recognizes the doctrine
of parental immunity, governs the threshold issue in this case,
namely, whether the child’s estate can make out a valid claim
upon which relief can be granted.
The child’s estate argues that although the rule of lex loci
deliciti applies in a  “technical sense,” it should not be applied
in this particular case because  (1) "there has been a noted
judicial trend away from a mechanical application of the
traditional lex loci deliciti doctrine to a more 'modern
approach' under which the applicable law is determined by
analyzing a number of objective factors" and  (2) Alabama's
parental immunity doctrine is contrary to the "extraordinarily
strong public policy" in this state against such immunity in
cases involving motor vehicle accidents as is evidenced by our
legislature’s abolition of the parental immunity doctrine in N.C.
Gen. Stat.  §  1-539.21.
While the first argument of the child’s estate has equitable
appeal, we find no evidence in our case law of a trend towards,
what plaintiff contends, is a more "modern approach" to the lex




loci deliciti doctrine.    To the contrary, our review of North
Carolina case law reveals a steadfast adherence by our courts to
the traditional application of the lex loci deliciti doctrine.
See Boudreau,  322 N.C. at  335-36,  368 S.E.2d at  854  (stating that
the rule of lex loci deliciti  “continues to be the majority rule
in the United States,” and that as such, there is no reason for
our courts to abandon the well-settled rule); Braxton v. Anco
Electric, Inc.,  330 N.C.  124,  126-27,  409 S.E.2d  914,  915
(1991)(“We do not hesitate in holding that as to the tort law
controlling the rights of the litigants in the lawsuit allowed by
this decision, the long-established doctrine of lex loci deliciti
commissi applies, and Virginia law controls.”); Lormic
Development Corp. v. N. American Roofing,  95 N.C. App.  705,  710,
383 S.E.2d  694,  697  (1989)(“Because we adhere to the lex loci
deliciti rule in determining conflicts of law issues in tort,
South Carolina tort law governs the determination of this
issue.”); Shaw v. Lee,  258 N.C.  609,  129 S.E.2d  278
(1963)(holding that plaintiff widow could not recover against
husband’s estate for alleged injuries sustained in automobile
accident because under the lexi loci deliciti rule, Virgina law,
which adhered to the doctrine of interspousal immunity, barred
her personal injury claim); Petrea v. Ryder Tank Lines, Inc.,  264
N.C.  230,  141 S.E.2d  278  (1965)(holding that plaintiff wife could
not recover for injuries sustained while riding as a passenger in
husband’s automobile because the same reasons which dictated the
court’s decision in Shaw v. Lee, supra applied); and Henry v.
Henry,  291 N.C.  156,  229 S.E.2d  158  (1976)(holding that although




both plaintiff wife and her husband were domiciled in
Pennsylvania, plaintiff wife’s personal injury suit against her
husband was not barred by Pennsylvania’s interspousal immunity
doctrine because under the rule of lex loci deliciti, North
Carolina law controlled).    Given our courts’ strong adherence to
the traditional application of the lex loci deliciti doctrine
when choice of law issues arise, we must decline any    request to
carve out a more  “modern approach” to the rule’s application.    As
our Supreme Court stated in Boudreau, lex loci deliciti is a rule
not to be abandoned in this State as it is an  “objective and
convenient approach which continues to afford certainty,
uniformity, and predictability of outcome in choice of law
decisions.”                                                            322 N.C. at  336,  368 S.E.2d at  854.
The child’s estate secondly argues that the rule of lex loci
deliciti should not be applied in this case because Alabama’s law
of parental immunity runs contrary to an extraordinarily strong
public policy in this State.    We find this argument also
unpersuasive.
From the outset, it should be noted that our legislature’s
abolition of parental immunity under N.C.G.S.  §  1-539.21 does not
necessarily mean that a contrary law of a foreign jurisdiction is
repugnant to North Carolina public policy.    Indeed, our courts
have consistently held that to refuse enforcement of a foreign
law on the basis that the law is contrary to the public policy of
this State,  “it must appear that it is against good morals or
natural justice, or that for some other reason the enforcement of
it would be prejudicial to the general interest of our own




citizens.”    Pieper v. Pieper,  108 N.C. App.  722,  726,  425 S.E.2d
435,  437  (1993)(quoting Ellison v. Hunsinger,  237 N.C.  619,  627,
75 S.E.2d  884,  891  (1953)).    In Pieper, we held that the
enforcement of an Iowa divorce judgment requiring the father to
pay continued child support payments beyond the age of  18 did not
violate the public policy of this State as the imposition of
additional child support beyond the age of majority was  “not
against good moral, natural justice or prejudicial to the
interest of North Carolina citizens.”    Id.      Similarly, in Terry
v. Pullman Trailmobile,  92 N.C. App.  687,  376 S.E.2d  47  (1989), a
case in which plaintiff brought suit in this State for injuries
sustained while using a defective product manufactured in New
York, we held that it was indeed proper to apply New York’s law
regarding negligence and strict liability claims, even though the
North Carolina General Assembly had expressly rejected the
doctrine of strict liability in product liability actions by way
of N.C. Gen. Stat.  §  99B-1.1.
Moreover, because application of the parental immunity
doctrine to the particular facts of this case does not, in our
opinion, go against the good morals or natural justice of this
State, or work an injustice against the citizens of North
Carolina, we find no merit in the contention that Alabama law
should not be applied in this case on the ground that it is
contrary to North Carolina public policy.
Finally, in anticipation of our application of Alabama law
to this case, the child’s estate urges this Court to create a
judicial exception to Alabama’s parental immunity doctrine.    The




child’s estate contends that a judicial exception should be
created for either of two reasons:  (1) because the purpose behind
the parental immunity doctrine in Alabama  -- to protect family
harmony and preserve family resources  -- is not served in this
case since the minor child is deceased and the recovery sought
would most likely be satisfied by the automobile insurance
carrier; and  (2) because an issue arises as to whether the
mother’s conduct rose to a level of willful and wanton
misconduct, thereby necessitating a factual determination by a
jury.
Regarding the estate’s argument that we should create a
judicial exception because the child is deceased and the
automobile insurance carrier would pay any damages recovered, we
find Owens v. Auto Mut. Indemnity Co.,  177 So.  133  (Ala.  1937)
significant.    In that case, the Alabama Supreme Court held that
the parental immunity doctrine barred the administrator of a
minor child’s estate from bringing a wrongful death suit against
the father’s insurer after the child was killed by an automobile
driven by the father.    Given this holding, the only conclusion to
be drawn is that the courts of Alabama adhere to the parental
immunity doctrine even in those cases in which the plaintiff sues
on behalf of a deceased minor child, or when the plaintiff’s
ultimate recovery is to be satisfied by the defendant’s insurer.
As to the argument that we create a  “willful and wanton”
misconduct exception, we must decline that invitation as well.
Although our courts have recognized such an exception to the
parental immunity doctrine in cases not involving motor vehicles,




see Doe v. Holt,  332 N.C.  90,  418 S.E.2d  511  (1992)  (holding that
the parental immunity doctrine, as it exists in North Carolina,
does not bar tort claims brought by unemancipated minors who have
suffered injuries as a result of a parent’s willful and malicious
conduct), the courts of Alabama are the final authority on the
scope and meaning of Alabama law, not the courts of this State.
Therefore, this Court will not carve out an additional exception
to Alabama law where the Alabama courts have not done so
themselves.    According to the Alabama Supreme Court, the only
exception to parental immunity in Alabama is when a minor child
sues his or her parent for sexual abuse or misconduct.    Hurst v.
Capitell,  539 So.2d  264  (Ala.  1989).    There being no such
allegation made in this case, we reject the invitation to create
an  “willful and wanton” misconduct exception to Alabama’s
parental immunity doctrine in cases involving motor vehicle
accidents.    Additionally, in reaching this conclusion, we note
that the child’s estate could have brought this action in the
State of Alabama and more appropriately petitioned the Alabama
courts to carve out additional exceptions to that state’s
parental immunity doctrine.
In sum, we hold that Alabama’s parental immunity doctrine
controls the outcome of this case; as such, the trial court
properly dismissed, pursuant to Rule  12(b)(6), the wrongful death
claim of the child’s estate against the mother.
Affirmed.
Judges MARTIN, John C. and WALKER concur.

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