In Hencely v. Fluor Corp., No. 24-924 (Apr. 22, 2026), Justice Alito wrote a dissent citing Restatement of the Law Second, Conflict of Laws § 145, which discusses choice of law in torts.
Section 145 sets forth a widely adopted choice-of-law test, which provides that, in actions involving torts, the law of the state with the most-significant relationship to the occurrence and the parties applies, as determined by considering contacts such as:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, 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.
The case involved a suicide-bomb attack by a Taliban operative who was working as an employee of a military contractor at an American military base in Afghanistan during the War in Afghanistan. A former Army Specialist who became permanently disabled in the blast sued the contractor under South Carolina law for negligent supervision, negligent entrustment of tools, and negligent retention of an employee in federal court in South Carolina, where the contractor’s subsidiaries were located, alleging that the contractor approved the operative for employment despite knowing that he had been involved with the Taliban in the past. The District Court entered summary judgment for the contractor, finding that suits against military contractors arising out of combatant activities were generally preempted, and the Fourth Circuit affirmed, concluding that, during wartime, all state-law claims against military contractors under military command arising out of combatant activities were preempted regardless of whether any conflict existed between the military’s instructions and state law.
In a 6–3 ruling, the U.S. Supreme Court vacated and remanded, holding that preemption did not apply and that the Army Specialist’s suit could proceed. Justice Thomas, writing for the majority, reasoned that no federal statute or constitutional provision expressly preempted the suit; that the federal government neither ordered nor authorized the contractor’s allegedly negligent conduct, which was contrary to its contractual obligations; and that, even though there was a “uniquely federal interest” in the regulation of military bases overseas, there would be no significant conflict between that interest and state-law negligence liability premised on a contractor’s departure from military instructions.
Justice Alito dissented from the majority’s finding that federal law did not preempt a member of the military from filing state-law tort claims against a government contractor for its allegedly negligent security arrangements on a military base in an active warzone. Justice Alito argued that such claims were preempted by the Constitution’s grant of war powers exclusively to the federal government because, among other things, applying state tort law could lead to vexing choice-of-law problems. Noting that the plaintiff’s injury occurred in Afghanistan, Justice Alito pointed out that, under South Carolina choice-of-law rules, a routine application of South Carolina’s rule of lex loci delicti, or the law of the state where the injury occurred, would call for trial under Afghan law as it existed at the time of the attack, and that the result might be the same under the most-significant-relationship test described in Restatement of the Law Second, Conflict of Laws § 145. Justice Alito maintained that “if the application of state law would impermissibly intrude into an exclusively federal domain, then adjudicating this case under foreign law would be even worse.”
Read the full opinion here.