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Doctor v. Pardue9/15/2005
s to liability, must be pleaded and proven and can be waived); Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 939 (Tex. 1992) (stating that governmental immunity and charitable immunity can be waived by failure to assert them as affirmative defenses) (citing Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex. 1988)). The central issue disputed by the parties in this case, distinct from the issue in Torrington, is whether the trial court properly limited the liability of EAA and completely immunized Pardue pursuant to the provisions of the Texas Charitable Immunity and Liability Act. We thus hold that the underlying particular substantive issue presented to this court is one of "charitable immunity."
Accordingly, we now consider, under the most significant relationship test, whether the law of Wisconsin or Texas should apply. We begin our choice of law analysis by consulting section 168 of the Restatement of Conflict of Laws, which specifically addresses charitable immunity. Restatement (Second) of Conflict of Laws § 168 (1971); see also Hughes Wood Prods., Inc., 18 S.W.3d at 206 n.2 (stating that "[this] Court has often applied more specific sections of the Restatement to address particular choice of law issues"); Robertson v. Estate of McKnight, 609 S.W.2d 534, 536 (Tex. 1980) (applying section 169 of Restatement to determine choice of law on issue of inter-spousal tort immunity). Section 168 provides that the law selected by application of section 145 of the Restatement determines the issue of charitable immunity. Restatement (Second) of Conflict of Laws § 168. The comments to section 168 further provide that the determination of the applicable law should be made in light of the principles set forth in section 6. Restatement (Second) of Conflict of Laws § 168 cmt. b.
Section 6 sets out the following factors relevant in a choice of law analysis:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of the other interested states and the relative interests of those states in 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 (Second) of Conflict of Laws § 6(2); see also Hughes Wood Prods., Inc., 18 S.W.3d at 205. In tort actions, the needs of interstate and international systems, the relevant policies of the forum, the relevant policies of other interested states, and the ease in the determination and application of the law to be applied assume greater importance. Restatement (Second) of Conflict of Laws § 145 cmt. b.
Section 145 states that the following contacts are to be taken into account when applying the principles of section 6 to determine the law applicable to a particular issue:
(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) (1971). These contacts are to be evaluated according to their relative importance with respect to the particular issue. Id. Furthermore, the number of contacts with a state is not determinative. Torrington Co., 46 S.W.3d at 848. Rather, a court must evaluate the contacts in l
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