Opinion
No. 75-188
Decided October 23, 1975. Rehearing denied November 13, 1975. Certiorari granted January 12, 1976.
In personal injury action by Colorado resident against foreign corporation for injuries sustained in accident at corporation facilities in Missouri, trial court invoked doctrine of forum non conveniens and dismissed the action. Plaintiff then appealed.
Reversed
1. COURTS — Forum Non Conveniens — How Applied — Factors Considered. The doctrine of forum non conveniens is to be applied with restraint, and, in determining whether the doctrine requires that an action be tried in a jurisdiction other than than chosen by the plaintiff, the factors to be considered are: Private interest of the litigant, relative ease of access to sources of proof, availability of compulsory process to assure the appearance of witnesses, relative expense of obtaining attendance of witnesses, the possibility of a view of the premises, and all other problems of obtaining a fair and impartial trial easily, expeditiously, and inexpensively.
2. Forum Non Conveniens — Factors Considered — Strongly Favor — Plaintiff's Choice of Forum — Not "Vex," "Harass," or "Oppress" — Not Disturbed. In personal injury action by Colorado resident against a foreign corporation for injuries sustained in accident at corporation facilities in Missouri, the relevant forum non conveniens considerations strongly indicate the balance to be in favor of plaintiff's choice of a forum, and there being no evidence that that choice was made to "vex," "harass," or "oppress" defendant, that choice of forum will not be disturbed.
Appeal from the District Court of the City and County of Denver, Honorable Gilbert A. Alexander, Judge.
Colin M. Clark, P.C., for plaintiff-appellant.
Anstine Hill, Ronald C. Hill, for defendant-appellant.
Division I.
This is an appeal from the dismissal, upon the grounds of forum non conveniens, of an action for damages commenced by a resident plaintiff against defendant, McDonnell-Douglas Corp., a Maryland corporation qualified to do business in Colorado.
Plaintiff Lohn, an employee of Martin-Marietta Corporation, performed services incident to his employment, for and on the premises of McDonnell-Douglas Corporation in St. Louis, Missouri. While descending a scaffold, which was constructed and maintained by defendant, he was injured. He brought suit against defendant in the Denver District Court. Defendant appeared specially and moved to dismiss the action under C.R.C.P. 12(b) urging two grounds: (1) That the court did not have in personam jurisdiction over the defendant or the subject matter of the action, and (2) that the doctrine of forum non conveniens required the court to decline jurisdiction in the matter in the interest of justice and for the convenience of witnesses and the parties. The court denied the motion on the former ground but, after the submission of briefs and argument, it granted defendant's motion holding specifically that the State of Colorado had no real interest in the cause of action or the facts giving rise to it and that there existed a more convenient forum elsewhere. We disagree.
[1] The doctrine of forum non conveniens was applied in this state in Allison Drilling Co., Inc. v. Kaiser Steel Corp., 31 Colo. App. 355, 502 P.2d 967. In Allison we determined that a court could refuse to exercise jurisdiction over a transitory cause of action when the ends of justice strongly indicate that the action may be more appropriately tried in a different forum. The factors to be considered in determining whether to decline jurisdiction include: The private interest of the litigant; the relative ease of access to sources of proof; the availability of compulsory process to compel the attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; the possibility of a view of the premises and all other practical problems that make trial of a case easy, expeditious, and inexpensive. In addition, the enforceability of a judgment, if one is obtained, as well as the advantages and obstacles to a fair trial should be considered. Further, the doctrine is to be applied with restraint and only after a proper showing has been made, and ". . . unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Allison, supra.
Applying the named factors to the circumstances of this case we find no proper showing to sustain the granting of defendant's motion to dismiss.
[2] Defendant focuses on the fact that Missouri was the situs of the accident and therefore the substantive law of Missouri would probably govern, and it asserts that Missouri courts can best interpret Missouri Law. We are confident, however, that if Missouri law is to be applied, Colorado court will properly apply it.
Defendant points out that all its designated expert witnesses reside in Missouri. However, against the cost to McDonnell-Douglas of transporting expert witnesses to Colorado we balance the following factors; (1) Plaintiff is a Colorado resident and our state has a strong interest in providing a forum for redress of the grievances of residents. (2) All but one of plaintiff's designated witnesses are Colorado residents and employees of the Martin-Marietta Corporation in Colorado. (3) Plaintiff alleges that he lacks financial means to transport his witnesses to Missouri. (4) The scaffolding involved in the accident was dismantled and stored by defendant, and can be as easily reassembled in Colorado as in Missouri.
Here, the relevant considerations strongly indicate the balance to be in favor of plaintiff, and there is no evidence to support a conclusion that plaintiff seeks to "vex," "harass" or "oppress" defendant by inflicting upon it expense or trouble not necessary to his own right to pursue his remedy. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed 1055. Consequently, we decline to disturb plaintiff's choice of forum.
Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.
JUDGE VAN CISE and JUDGE STERNBERG concur.