Wharton v. Ridgell

922 So. 2d 461, 2006 WL 135755
CourtSupreme Court of Louisiana
DecidedJanuary 19, 2006
Docket2005-CC-0069
StatusPublished
Cited by5 cases

This text of 922 So. 2d 461 (Wharton v. Ridgell) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wharton v. Ridgell, 922 So. 2d 461, 2006 WL 135755 (La. 2006).

Opinion

922 So.2d 461 (2006)

Jessica WHARTON, Etc.
v.
Michael RIDGELL, Et Al.

No. 2005-CC-0069.

Supreme Court of Louisiana.

January 19, 2006.
Rehearing Denied March 17, 2006.

Cashe, Lewis, Coudrain & Sandage, Shaan M. Aucoin, Ashley Edwards-Sandage, Hammond, for applicant.

Borne & Wilkes, LLP, Keith Michael Borne, Lafayette, Silvestri & Massicot, Anthony Louis Marinaro, Frank Anthony Silvestri, New Orleans, M. Damien Savoie, Plauche, Maselli, Landry & Parkerson, LLP, Andre L. Plauche, Jr., New Orleans, Breazeale, Sachse & Wilson, LLP, Cullen John Dupuy, Matthew Preston Bonham, Douglas Kent Williams, Baton Rouge, for respondent.

JOHNSON, Justice.

The decedent, Savannah Daley, sustained severe injuries in Tangipahoa Parish and subsequently died in Orleans Parish. Her mother, Jessica Wharton, filed a wrongful death action in Orleans Parish. We granted this writ of certiorari to determine whether Orleans Parish is a proper venue for plaintiff's lawsuit. After a careful *462 review of the record and the relevant legal precepts, we conclude, pursuant to LSA-R.S. 13:5104(B), venue is proper in Orleans Parish for this wrongful death action. Accordingly, we affirm the court of appeal's ruling, and we remand this case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This case arises from a fatal automobile-pedestrian accident which occurred in Tangipahoa Parish. According to the petitions filed in this matter, Savannah Daley was crossing a street in Hammond, Louisiana when she was struck by a vehicle driven by Michael Ridgell, who was in the course and scope of his employment with Tycer Ready Mix, Inc. ("Tycer"). As a result of injuries suffered in the accident, Savannah was transferred to Children's Hospital in New Orleans, Louisiana (Orleans Parish), where she died seventeen days later.

Savannah's mother, Jessica Wharton ("plaintiff"), filed the instant wrongful death action in Civil District Court for the Parish of Orleans. Among the defendants named in the suit were Mr. Ridgell (a resident of Tangipahoa Parish), Tycer (a corporation with its agent for service of process located in Tangipahoa Parish),[1] and the City of Hammond.[2]

Tycer and the City of Hammond filed declinatory exceptions of improper venue. Following a hearing, the trial court granted the exceptions of improper venue and ordered that the case be transferred to the Twenty-First Judicial District Court for the Parish of Tangipahoa. Plaintiff filed for supervisory review in the Fourth Circuit Court of Appeal. The court of appeal granted the writ and reversed the trial court's ruling. Wharton v. Ridgell, XXXX-XXXX (La.App. 4 Cir. 12/15/04) (unpublished).

Both Tycer and the City of Hammond filed applications for writ of certiorari in this Court. This Court granted both applications and consolidated the matters. Wharton v. Ridgell, XXXX-XXXX, XXXX-XXXX (La.3/24/05), 896 So.2d 1015. On April 5, 2005, Tycer filed a motion to dismiss its writ application, which this Court granted on April 6, 2005.

DISCUSSION

The City of Hammond contends that under LSA-R.S. 13:5104(B), Tangipahoa Parish is the only proper venue for plaintiff's suit against it. Conversely, plaintiff asserts that venue is proper in Orleans Parish because she sustained damages in Orleans Parish due to the death of her daughter in that parish.

LSA-R.S. 13:5104(B) provides:

All suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.

In McDaniel v. Reed, 613 So.2d 758 (La.App. 4 Cir.1993), the decedent was initially treated for severe headaches at Franklin Medical Center located in Franklin Parish. The decedent was subsequently *463 transferred to E.A. Conway Medical Center in Ouachita Parish, were he received further treatment. Thereafter, he was transferred to Charity Hospital in Orleans Parish, where he underwent surgery and later died. The plaintiffs filed a wrongful death suit in Orleans Parish.

The defendants filed exceptions of improper venue. Charity Hospital and E.A. Conway Medical Center argued, inter alia, that the physician defendants were employees of a political subdivision, Louisiana Health Care Authority, and therefore, suits against them could only be brought either in East Baton Rouge Parish, the domicile of the Louisiana Health Care Authority, or in the place where the cause of action arose (Ouachita Parish as to the E.A. Conway physician and Orleans Parish as to the Charity Hospital physician). In his exception of improper venue, the Franklin Parish physician argued that proper venue for a suit against him would be Franklin Parish, where the cause of action arose.

The trial court granted the exceptions of improper venue, finding that, pursuant to LSA-R.S. 13:5104, venue was proper in Franklin Parish, the location where the plaintiffs' cause of action arose. The court of appeal granted the plaintiffs' application for supervisory writs and reversed. The appellate court stated:

In a wrongful death case, for the purposes of venue, the parish in which the death occurs that forms the basis of the suit is "the parish where the damages are sustained" under La.C.C.P. art. 74[[3]] and plaintiff is allowed to bring the action in that parish. Laborde v. DeBlanc, 532 So.2d 829 (La.App. 4 Cir.1988). Further, a cause of action in wrongful death does not arise until the victim dies. Guidry v. Theriot, 377 So.2d 319 (La. 1979).
Under these circumstances, we find that plaintiffs' cause of action for the wrongful death of decedent arose in Orleans Parish, where decedent was treated extensively, underwent surgery and ultimately died.

Later that same year, the Second Circuit Court of Appeal decided Keele v. Knecht, 621 So.2d 106 (La.App. 2 Cir. 1993), the case relied upon by the City of Hammond in this case. In Keele, the plaintiffs, residents of Sabine Parish, took their daughter to be treated by a physician who was domiciled and practiced medicine in Natchitoches Parish. The defendant physician administered Tylenol to the child in his office and instructed the child's mother to continue administering Tylenol to the child. Three days later, the child's condition had worsened, and she was taken to the emergency room at Natchitoches Parish Hospital. Subsequently, the child was transferred to Schumpert Medical Center in Caddo Parish. She was diagnosed with strep throat, severe dehydration, and Tylenol poisoning, and she died three days later in Caddo Parish. The plaintiffs filed a wrongful death suit in Caddo Parish against the physician who initially treated the child in Natchitoches Parish. The physician filed an exception of improper venue, arguing that he was domiciled in Natchitoches Parish and all treatment which he rendered to the child occurred in Natchitchoches Parish. The trial court granted the exception, and the court of appeal affirmed. The appellate *464 court distinguished McDaniel, pointing out that in McDaniel,

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