19-1917
Alpert v. Starwood Hotels and Resorts Worldwide, Inc.

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
2nd day of April, two thousand twenty.

Present:    DENNIS JACOBS,
            ROSEMARY S. POOLER,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

PETER ALPERT, REBECCAH DRILL,

                                  Plaintiffs-Appellants,

                          v.                                                   19-1917-cv

STARWOOD HOTELS AND RESORTS WORLDWIDE, INC.,
SHERATON OVERSEAS MANAGEMENT CORPORATION,

                        Defendants-Appellees.
________________________________________________

Appearing for Plaintiffs-Appellants:                       Lewis Chimes, Stamford, CT.

Appearing for Defendants-Appellees:                        Eric W.F. Niederer (Erik K. Tomberg, on
                                                           the brief), Wilson Elser Moskowitz
                                                           Edelman & Dicker LLP, Stamford, CT.

        Appeal from the United States District Court for the District of Connecticut (Underhill,
J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Plaintiffs-Appellants Alpert and Drill appeal from the October 31, 2018 final judgment
entered in the United States District Court for the District of Connecticut (Underhill, J.) granting
summary judgment to defendants. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.

        Plaintiffs initially sued defendants for negligence and loss of consortium stemming from
injuries incurred by Alpert while he was on vacation at the Sheraton Hacienda del Mar Resort in
Cabo St. Lucas, Mexico. While wading in the ocean outside the resort, Alpert was hit by a
sudden and powerful wave. Plaintiffs argue on appeal that the district court erred in its choice-of-
law analysis and in the manner in which it applied Mexican law to the facts of this case.

         We agree with the district court that a federal court applies the choice-of-law rules of the
state in which it sits, and that therefore Connecticut law applies. See Booking v. Gen. Star Mgmt.,
254 F.3d 414, 419 (2d Cir. 2001). Connecticut courts adhere to the “most significant relationship
test” to determine which jurisdiction’s law is applicable, based on the factors outlined in sections
145 and 6 of the Restatement (Second) of Conflict of Laws (“Restatement”). W. Dermatology
Consultants, P.C. v. VitalWorks, Inc., 322 Conn. 541, 558 (2016). We review the district court’s
determination de novo. See Caruolo v. John Crane, Inc., 226 F.3d 46, 57 (2d Cir. 2000).

        Section 145 of the Restatement states that the “most significant relationship” test is to be
applied using the principles provided in section 6, and enumerates the following “[c]ontacts to be
taken into account” when applying those principles:

        (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(2)(a)-(d) (Am. Law Inst. 1971).

        Section 6 provides the following factors for courts to consider:

        (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(2)(a)-(g).



                                                   2
         The district court first considered the factors in section 145 and properly found that the
location of the injury, the location of the alleged negligent conduct causing the injury, and the
locus of the relationship between the parties was Mexico, and therefore, these factors favored
applying Mexican law. With respect to the factors listed in section 6, the district court considered
the relevant policy issues at stake and determined that the balance of factors favored applying
Mexican law. The needs of the interstate and international system; Mexico’s sovereignty and its
significant interest in applying its own tort law to participants in its tourism industry; and the
justified expectations of international travelers to Mexico all led the court to correctly decide that
Mexican law was the appropriate body of law to apply. Accordingly, we find no error in the
district court’s analysis.

        Plaintiffs-Appellants also challenge the district court’s application of Mexican law,
insofar as it concluded that plaintiffs’ negligence claim must fail under the more stringent
causation standard used in Mexican tort law. We disagree and conclude that the district court
properly applied Mexican law.

        Federal Rule of Civil Procedure 44.1 provides that “[i]n determining foreign law, the
court may consider any relevant material or source, including testimony, whether or not
submitted by a party or admissible under the Federal Rules of Evidence.” The parties do not
dispute that the relevant provision is Article 2016 of the Civil Code of Baja California Sur,
which requires losses and damages be a direct and immediate consequence of the illicit act or the
act contrary to good practices or customs. Using this standard, the district court reasonably
concluded, using appropriate sources at its disposal— including a law review article previously
cited by our Court and other case law discussing the causation standard at issue—that the
strength and sudden formation of an individual wave was per se fortuitous under Mexican law,
foreclosing plaintiffs’ negligence claim.

       We have considered the remainder of Plaintiffs-Appellants’ arguments and find them to
be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




                                                  3
