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Ex parte Children's Hospital of Alabama8/19/2005
f action arises has been said to consist of a duty on the part of one toward another and the violation or breach of that duty, or of plaintiff's primary right and the act or omission of defendant. ... It arises when that is not done which should have been done, or that is done which should not have been done. ... he cause of action accrues in the county in which defendant's wrongful act was done."
"'Relating these general principles to the case at hand, it seems reasonable to us ... that ... the cause of action "arose" within the meaning of the Bessemer Division Act within the Bessemer Division.'
"279 Ala. at 513, 187 So. 2d at 267. These general principles control in the case before us. Applying these principles, we opine that the alleged wrong for which the petitioners seek redress occurred in the Birmingham Division, and, thus, the cause of action arose there."
432 So. 2d at 1292-93. See also Winn-Dixie Montgomery, Inc. v. Bryant, 421 So. 2d 1254, 1256 (Ala. 1982)(noting, in a case involving the act creating the Bessemer Division, that "a case arises wherever the alleged wrong occurs"). But cf. Ex parte Central of Georgia Ry., 243 Ala. at 511, 10 So. 2d at 748 (holding, without citing authority, that a wrongful-death action arose at the time and place of the fatal injury causing the death).
Terry complains of events that occurred while Austin was a patient at the Hospital. Specifically, Terry claims that the Hospital and Pszyk failed to exercise reasonable care in investigating allegations of abuse and in protecting Austin from abuse, that the Hospital and Pszyk should have identified the signs of abuse and reported the abuse when Austin was admitted to and treated at the hospital, that the Hospital and Pszyk should not have allowed Austin to be discharged from the hospital, and that their discharging him from the hospital placed Austin in a life-threatening situation.
Terry contends that, because the injures alleged to have been caused by Wesson in Bessemer resulted in Austin's eventual death at the Hospital in Birmingham, venue is proper in the Bessemer Division. However, under the principle of Ex parte Fields, we must consider where the alleged wrongful acts or omissions by the Hospital and by Pszyk occurred. Terry complains of events that occurred while Austin was a patient at the Hospital, which is located in the City of Birmingham. Thus, the cause of action did not "arise" within the Bessemer Division and venue therefore is proper in the Birmingham Division, and not in the Bessemer Division.
Conclusion
We conclude that the Hospital and Pszyk have established a clear legal right to have Terry's claims against them transferred to the Birmingham Division of the Jefferson Circuit Court. We therefore grant the petition and issue the writ of mandamus, directing the trial court to vacate its September 13, 2004, order denying the Hospital's motion to change venue, and we direct the trial court to transfer the claims against the Hospital and Pszyk to the Birmingham Division of the Jefferson Circuit Court.
MOTION TO DISMISS DENIED; PETITION GRANTED; WRIT ISSUED.
Harwood, Stuart, Smith, and Bolin, JJ., concur.
Nabers, C.J., recuses himself.
Page 1 2 3 4 5 6 Alabama Personal Injury Attorneys
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